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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Rafferty, R. v [2004] EWCA Crim 968 (05 April 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/968.html Cite as: [2004] EWCA Crim 968, [2004] Crim 968 |
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE CRANE
MR JUSTICE HUNT
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R E G I N A | ||
-v- | ||
WILLIAM ANDREW RAFFERTY | ||
WILLIAM KINMOND RAFFERTY |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR S MARGREE appeared on behalf of the CROWN
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Crown Copyright ©
"Count 1 I return to. It has to be shown that the defendant whom you are looking at, first of all, used or threatened unlawful violence, that is to say violence that was not being employed in the means of self-defence; secondly, it has to be used towards somebody else, not between the two of them; and thirdly, it has to be shown that their conduct taken together was such as would cause a reasonable person of reasonable firmness present at the scene to fear for his or her personal safety. Assuming for the moment that you are the reasonable person, you can put yourselves outside the take-away, because that charge is said to relate to the conduct of the two defendants after they got out of the car and until they finally got back into it again and drove off. If during that period of time you are satisfied so that you are sure that they either used or threatened unlawful violence, that is to say not in their own self-defence, and not, incidentally, by any form of accident, and it would cause a person of reasonable firmness to suffer(sic) [is the word that appears in the transcript, though Mr Carter properly takes no point on that; it may be the shorthand writer misheard the word "fear"] for his or her personal safety, if you are satisfied so that you are sure about that, guilty."
"The verdicts were not inconsistent. The assault offences required actual violence (or at least an act causing the victim to apprehend immediate violence). Affray can be committed by a threat of violence."
As it apparent from the evidence which we have summarised, the aspects of this matter which were capable of sustaining a count of affray did not hinge upon the actual administration of personal violence. They included such elements as the car arriving and screeching to a stop, chasing the people into the take-away, kicking down the door of the take-away and such like. In those circumstances, as it seems to us, there is not the beginnings of inconsistency in the jury's verdicts. We repeat yet again, in summary form, just a few of the authorities in this Court, in which the need for logical inconsistency between the verdicts to be present before such a ground can take off. We identify, for example, R v McCluskey 98 Cr App R 216, R v Bell Court of Appeal (Criminal Division) 15th May 1997, R v Clarke & Fletcher Court of Appeal (Criminal Division) transcript 30th July 1997, R v G [1998] Crim LR 483 and R v McCartney & Ors [2003] EWCA Crim 1372. Finally, we refer to an observation made by Buxton LJ in G, at page 484 of the report, which, regrettably, seems to be far less heeded than it should be. It is in these terms:
"In appeals in relation to alleged inconsistent verdicts those promoting the appeal should ensure that Bell and the instant case [that is G] are before the Court and should be in a position to explain why the general approach adumbrated in Bell should not apply."
That did not happen so far as the application to the Single Judge was concerned. It should have done. There is no arguable basis for contending that the verdicts is this case were logically inconsistent. Accordingly, leave in relation to the second ground is refused. This appeal, for the reasons already given in relation to the first ground, is dismissed.