Leeson, R (on the application of) v DPP

Affray is a public-order offence. The statutory question is whether unlawful violence was of a kind that would cause a hypothetical person of reasonable firmness, present at the scene, to fear for personal safety. The court must assess the whole context, including the nature of the premises, the circumstances, the character of the violence and whether it was directed solely between the persons involved. A remote possibility that a bystander might be present does not, by itself, prevent affray. However, a private and focused threat between two people will not sustain a conviction where the evidence cannot establish that a reasonable bystander would fear for his own safety.

The claimant appealed by way of case stated against her conviction by Oxford City magistrates for affray contrary to section 3 of the Public Order Act 1986. She had held a kitchen knife while threatening to kill her partner in a locked bathroom within an otherwise unoccupied house. The magistrates found that a third person might have arrived, although the likelihood was low, and that a person of reasonable firmness present would have feared for personal safety.

The central issue was whether the statutory test could be satisfied where the possibility of a third party being present was low and the violence was confined to a private, personal confrontation.

1. Appeal allowed. The magistrates’ question was answered in the negative. The case was remitted to the magistrates with a direction to acquit the claimant.
2. Section 3(4) of the Public Order Act 1986 establishes an objective test. The court must consider whether a hypothetical person of reasonable firmness, present at the scene, would fear for personal safety. That person need not actually have been, or have been likely to be, present.
3. The possibility of a bystander being present need not be substantial. A remote possibility is not alone sufficient to defeat a conviction. The relevant assessment must nevertheless address the nature of the premises and scene, the surrounding circumstances, the character of the violence, and whether the conduct was limited to the persons directly involved.
4. The offence protects public order and is not merely a supplementary offence against the person. The court must therefore scrutinise the factual context before applying the statutory language. Conduct directed solely at one individual may constitute affray in an appropriate setting, but the presence of unlawful violence alone is insufficient.
5. On the facts, the incident occurred within seconds in a locked bathroom in an unoccupied house, with no expectation that anyone else would enter. The threat was personal and directed at the claimant’s partner. Even if a notional bystander had entered, the evidence did not establish that fear would have been for that person’s own safety rather than for the safety of the two people involved. The conviction was therefore unsupported by the evidence.
6. Lord Justice Pill agreed. He emphasised that the decisive defect was not the low likelihood of another person being present, but the absence of evidence making it open to the justices to find that a reasonable person present would fear for his safety.

• Oxford City Magistrates’ Court: convicted the claimant of affray on 13 August 2009.
• High Court (Administrative Court): allowed the appeal by way of case stated and remitted the case with a direction to acquit.