R v Iona Summerson & Anor

For affray under the Public Order Act 1986, the conduct constituting the actus reus and the mental element are distinct. A jury should ordinarily receive a separate direction on mens rea, and a route to verdict should include every contestable element. An isolated use of the word “deliberately” will not ordinarily cure omission of a separate mens rea question. However, the omission does not automatically make a conviction unsafe. The appellate question is whether, had a proper direction been given, any reasonable or rational jury could only have found the required intention on the facts accepted. Where the proven conduct necessarily involved intentionally using or threatening violence, the conviction may remain safe.

Following a protest at an office building, Iona Summerson was convicted of conspiracy to commit criminal damage and affray at the Crown Court at Isleworth. Harvey Brown was convicted of affray. Each received a community order. They appealed against conviction, arguing that the jury had not been separately directed on the mens rea of affray under section 6(2) of the Public Order Act 1986, and that the route to verdict omitted that issue. The prosecution relied on the word “deliberately” in the written directions and submitted that the convictions remained safe because the accepted evidence necessarily established intention. The central issue was whether the omission rendered either conviction unsafe.

1. Outcome. The appeals against conviction were dismissed. The absence of a separate direction on the mental element of affray did not render either conviction unsafe.
2. Statutory framework. Section 3 of the Public Order Act 1986, read with section 8, concerns the conduct constituting the actus reus of affray. Section 6(2) supplies the separate mens rea: the defendant must intend to use or threaten violence, or be aware that the conduct may be violent or threaten violence. The court relied on I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285 in explaining that distinction.
3. Omitted direction. R v Mann [2002] EWCA Crim 3045 did not establish that every failure to direct on mens rea makes an affray conviction unsafe. The effect of the omission depends on whether the necessary mental element inevitably follows from the conduct which the jury must have found proved. Although a direction should generally be given, omission without more is unlikely to make a conviction unsafe in some cases of affray by fighting where the proven violence leaves no real dispute about mens rea.
4. The route to verdict was repeatedly described as the jury’s map for reaching the correct verdict and should have contained all contestable elements. The single word “deliberately” in the written legal directions did not amount to an adequate direction on intention, particularly because intention was omitted from the route to verdict. The court also referred to R v Stevens [2023] EWCA Crim 1182.
5. Application. The jury’s affirmative answer on violence meant that it accepted the security manager’s evidence and rejected the appellants’ accounts that the flares were held away from people for photographic effect. Holding the flares close to his face for about two minutes inevitably involved an intention to use or threaten violence. Any properly directed jury could only have reached that conclusion.

• Crown Court at Isleworth: Iona Summerson was convicted of conspiracy to commit criminal damage and affray, while Harvey Brown was convicted of affray. Each was sentenced to a community order.
• Court of Appeal (Criminal Division): Appeals against conviction were heard with leave of the single judge and dismissed under [2026] EWCA Crim 625.