Freeman, R (on the application of) v Department of Public Prosecution

For affray under section 3(1) of the Public Order Act 1986, the question is whether the conduct would cause a hypothetical person of reasonable firmness present at the scene to fear for personal safety. The fact-finder may consider the actual reactions of bystanders, but must apply the statutory objective test. Violence directed at one victim can constitute affray where its nature and consequences would objectively create the requisite fear. A single blow is not automatically insufficient. The court must assess the seriousness of the violence and the surrounding circumstances, while avoiding the conversion of every common assault into an affray.

The appellant appealed by way of case stated against convictions at Coventry Magistrates’ Court for assault and affray arising from an incident recorded on CCTV. He accepted that the identity of the victim was immaterial to the assault charge. The remaining issue was whether the magistrates had correctly concluded that the conduct would cause a person of reasonable firmness present at the scene to fear for personal safety, despite the violence being directed at one victim and the limited evidence about bystanders’ reactions.

1. Appeal dismissed. The magistrates had asked themselves the correct statutory question under section 3(1) of the Public Order Act 1986. Their conclusion was open to them on the facts.
2. The statutory test is objective and hypothetical. The reactions of actual bystanders are relevant evidence, but they do not replace the statutory question. A fact-finder may consider those reactions, whether apparently fearful, indifferent or otherwise, and must then assess what a person of reasonable firmness present at the scene would have feared.
3. The CCTV showed four bystanders close to the assault. One appeared distressed and another appeared to run away. The magistrates were entitled to consider this evidence, provided that they went on to apply the hypothetical objective test. In an extreme case, the demeanour of bystanders might be decisive evidence of how the hypothetical person would assess the incident.
4. The argument that the violence was insufficient because it consisted of a single blow directed at one victim was rejected. The victim was struck in the head, fell to the ground, and suffered a bloodied nose, facial swelling and a blood-covered coat. Those circumstances permitted the magistrates to find that the conduct would cause the requisite fear.
5. R v Plavecz was distinguished because the physical contact there was minimal, caused no injury and did not cause the victim to fall. The court emphasised the need to avoid treating every common assault as an affray, but held that the present facts were materially more serious.
6. The first question concerning the victim’s identity was not answered because the appellant accepted that the CCTV established an unlawful assault and that the victim could have been described as a person unknown to the prosecutor. There was no order for costs because the appellant was publicly funded.

The judgment does not state the full procedural history beyond the appeal by way of case stated from convictions recorded at Coventry Magistrates’ Court on 23 September 2011.