Hughes v Director of Public Prosecutions

For an offence under section 4(1) of the Public Order Act 1986 charged on the basis of an intention to cause the victim to believe that immediate unlawful violence would be used, the prosecution need not prove that the victim actually held that belief. It must nevertheless prove the defendant’s relevant intention. A sudden, unprovoked blow delivered from behind, before the victim could perceive or react to it, does not by itself establish an intention to cause apprehension of violence. Prosecutors should charge the offence which the evidence supports and should not rely on a strained or artificial construction to fit conduct more properly characterised as assault.

The appellant appealed against his conviction by a District Judge in the Luton and South Bedfordshire Local Justice Area on 18 July 2011. He had struck Mr Peck suddenly from the side and slightly behind, knocking him unconscious. He was convicted under section 4(1) of the Public Order Act 1986 on the basis that he intended to cause Mr Peck to believe that immediate unlawful violence would be used against him.

The central issue was whether the evidence entitled the District Judge to infer that intention, notwithstanding the finding that the blow was intended to land before Mr Peck perceived it or could defend himself.

1. The appeal was allowed. There was no evidence on which the District Judge could properly conclude that the appellant intended to cause Mr Peck to believe that unlawful violence would be used against him.
2. The statutory basis relied upon was the appellant’s intention, not the alternative basis that unlawful violence was likely to be provoked. Those were separate and distinct bases of liability.
3. The prosecution did not need to prove that Mr Peck actually believed that unlawful violence would be used against him. That principle was stated in Swanston v DPP [1997] 161 JP 203 WL. It did not remove the need to prove the appellant’s intention to cause that belief.
4. The attack was sneaky and unprovoked. The appellant approached from behind and delivered one blow without advance warning. The possibility that Mr Peck might have noticed the attack immediately before it landed was too strained a basis for inferring the necessary intention.
5. There was no evidence that the appellant intended Mr Peck to apprehend a second blow or a further occasion of violence. The facts therefore did not support the section 4(1) charge. The court emphasised that prosecutors should not attach the wrong label to conduct and then attempt to make it fit by an artificial construction.

• High Court (Administrative Court): On 31 January 2012, the Divisional Court allowed the appeal against the District Judge’s decision.
• Luton and South Bedfordshire Local Justice Area: On 18 July 2011, the District Judge convicted the appellant under section 4(1) of the Public Order Act 1986.