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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> I and Another and Another v. Director of Public Prosecutions and I and Another and Another v. Director of Public Prosecutions [2001] UKHL 10; [2001] 2 All ER 583; [2001] 2 WLR 765 (8th March, 2001) URL: http://www.bailii.org/uk/cases/UKHL/2001/10.html Cite as: [2002] AC 285, (2001) 165 JP 437, [2002] 1 AC 285, [2001] 2 All ER 583, (2001) 165 JPN 506, [2001] 2 Cr App Rep 14, [2001] 2 Cr App R 14, [2001] 2 WLR 765, [2001] UKHL 10

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I and Another and Another v. Director of Public Prosecutions and I and Another and Another v. Director of Public Prosecutions [2001] UKHL 10; [2001] 2 All ER 583; [2001] 2 WLR 765 (8th March, 2001)

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Clyde Lord Hutton Lord Hobhouse of Wood-borough Lord Scott of Foscote

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 8 MARCH 2001

[2001] UKHL 10

LORD BINGHAM OF CORNHILL

My Lords,

    1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hutton. For the reasons which he gives, I would allow these appeals and respond to the certified questions as he proposes.

LORD CLYDE

My Lords,

    2. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hutton. For the reasons which he gives, I would allow these appeals and respond to the certified questions as he proposes.

LORD HUTTON

My Lords,

    3. On the evening of 21 October 1997 the police received an anonymous telephone call that approximately 30 Asian youths armed with sticks were gathering together in Canon Street Road, London E1. A marked police carrier with seven police officers was despatched to Canon Street Road and on arrival there about 6.50 pm the police carrier turned into Bigland Street where there is a block of residential flats called Luke House. The police in the carrier saw 40 to 50 Asian youths milling around in a group on a raised concourse outside Luke House, 8 or 9 of whom were carrying petrol bombs consisting of milk bottles containing petrol with a tissue wick in the mouth. When the police carrier came into view the group immediately dispersed and ran off and no violence was shown towards the police officers. The police pursued some of the group and the three appellants were captured and arrested close to Luke House. Before their capture the three appellants each threw away a petrol bomb which he had been carrying. The appellants were interviewed by the police and in the course of the interviews one of them said that he was a member of a gang called the "Canon Street Boys" who were going to have a fight with another gang called the "Barnado Boys", and the petrol bombs were going to be thrown in the fight.

    4. The appellants were charged with the statutory offence of affray contrary to section 3(1) of the Public Order Act 1986 and were convicted by Mr Justin Philips, a Metropolitan Stipendiary Magistrate, sitting at West London Youth Court on 22 July 1998. The appellants appealed to the Divisional Court by case stated. The three cases stated set out the facts found by the learned Stipendiary Magistrate in identical terms and two of the findings are of particular relevance to the present appeal:

"(f) As the police carrier came into view, the group dispersed immediately in all directions.

"(k) Aside from the police no other persons, and in particular no member of any other gang, were shown to be present at the scene at 6.50pm."

It is also appropriate to set out certain other findings:

"(e) Officers in the carrier thought that petrol bombs were being carried and PC Brown thought that there could be a disturbance.

"(i) At no time was any fuse lit and when police came on the group there was no fighting, no shouting or throwing of any object. Nothing was said and no bottles were waved.

"(j) In the Bengali-populated East End, the street gangs are territorial and there is bad-blood between the various gangs."

The Stipendiary Magistrate stated:

"I was of the opinion that in this part of London, with its agreed contemporary history of gang warfare, the presence of this group of youths (approximately a quarter of which was armed with petrol bombs) would threaten with violence any member of the public alighting upon the scene, whether that member of the public was a resident, a passer-by or a police officer; and although, with the exception of the officers in the carrier, there was no evidence of anyone to whom it could be said the threat was directed, the offence of affray in this instance was made out as the armed group had congregated in public and constituted a general threat to the public at large, and that a person of reasonable firmness present at the scene of this incident would have feared for his or her safety."

The questions set out in the case stated for the opinion of the Divisional Court were:

"1. Was I correct in deciding that a conviction for affray under Section 3(1) of the Public Order Act 1986 can be recorded without evidence being adduced that any person was or believed himself to have been subjected to or threatened with violence?

2. Was I correct in my ruling that a threat of violence towards a hypothetical person or persons or the public at large is sufficient to constitute a threat 'towards another,' and that this threat could be inferred from the evidence that police alighting on this scene thought that petrol bombs were being carried and one officer thought there could be a disturbance."

In his judgment in the Divisional Court ([2000] 1 Cr App R 251, 254A) Auld LJ reformulated the questions:

"1. Whether the mere possession of petrol bombs in the circumstances was capable of amounting to a threat of unlawful violence?

2. If so, whether a threat of violence towards an unknown person or persons, or the public at large, amounted to a threat of unlawful violence 'towards another'?

3. And if so, whether such a threat could be inferred from the evidence of the police that they thought members of the group were carrying petrol bombs and that one officer thought there could be a disturbance?"

    5. The Divisional Court dismissed the appeals and held (1) that the visible carrying in public of primed petrol bombs by a large number of youths "obviously out for no good" was clearly capable of constituting a threat of unlawful violence and (2) that whilst there had to be someone at or in the vicinity towards whom the threat of violence could be said to be directed, in the special circumstances of this case the overt carrying of petrol bombs, highly dangerous and untargeted in their effect if exploded, constituted a threat of violence to anyone in the vicinity, including the police on arrival on the scene.

    6. The questions certified by the Divisional Court as points of law of general public importance are:

"(1) "Whether the overt possession of a weapon may constitute a threat of violence for the purpose of affray when it is not used or brandished in a violent manner."

(2) "Whether in order to constitute a threat for the purpose of affray it must be directed at a particular person or whether it is sufficient, providing that there is another or others present, that it is directed generally against anyone present."

(3) "Whether, in order to constitute a threat for the purposes of affray, the threat must be perceived as such by a person against whom it is directed."

    7. I consider that the second certified question is not apposite and that the point to which it relates should be reformulated:

"In order to constitute the statutory offence of affray does the threat of unlawful violence have to be towards a person or persons present at the scene?"

    8. In its Report in 1983 on Offences Relating To Public Order (Law Com No 123) the Law Commission recommended the abolition of the common law offences of affray, riot, unlawful assembly and rout and the replacement of the first three by new statutory offences. In its Working Paper (No 82, 1982) which preceded its Report the Law Commission stated:

"4.3 The common law offence of affray is typically charged in cases of pitched street battles between rival gangs, spontaneous fights in public houses, clubs and at seaside resorts, and revenge attacks on individuals. The offence is apparently rarely resorted to in the context of demonstrations or protests where disorder has broken out, although there is nothing in law to prevent a charge of affray being brought where serious fighting is involved in those circumstances."

    9. The long title of the Public Order Act 1986 states:

"An Act to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order; to create new offences relating to public order …"

Section 1 creates the statutory offence of riot which is committed where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. Section 2 creates the statutory offence of violent disorder which is committed where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

Section 3 creates the statutory offence of affray and provides:

"(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places."

Section 4 creates the statutory offence of conduct intended or likely to cause fear or provoke violence and provides:

"(1) A person is guilty of an offence if he—

(a) uses towards another person threatening, abusive or insulting words or behaviour, or

(b) distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

(2) An offence under this section may be committed in a public or a private place, …"

Section 6 provides:

"(2) A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence."

Section 8 provides:

"8. In this Part—

"violence" means any violent conduct, so that—

(a) except in the context of affray, it includes violent conduct towards property as well as violent conduct towards persons, and

(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short)."

Section 9 provides:

"(1) The common law offences of riot, rout, unlawful assembly and affray are abolished."

    10. My Lords, the issue which arises on the first certified question is whether, as a matter of law, the carrying of petrol bombs by a group of persons can constitute a threat of violence where those petrol bombs are not being waved or brandished. I consider that giving the words "threatens unlawful violence" in section 3(1) their ordinary and natural meaning the carrying of dangerous weapons, such as petrol bombs by a group of persons can, in some circumstances, constitute the threat of violence, without those weapons being waved or brandished.

    11. This view is supported by the authorities on the common law offence of affray. Whilst as Taylor LJ observed in Atkin v Director of Public Prosecutions (1989) 89 Cr App R 199, 204, a court is not assisted in construing words in a section creating a new offence by considering decisions of other courts in regard to the construction of an earlier section containing quite different words, section 3 of the 1986 Act did not create an entirely new offence but replaced the common law offence of affray and the Law Commission stated in para 3.1 of its Report that it considered that the new statutory offence "should be similar to the common law offence with some clarification and narrowing of its elements." Auld LJ rightly observed at page 256F that where a statutory offence replaces a common law offence the courts should approach with care indications to be found in the earlier common law as to the elements of the offence. But he also observed that section 3 mirrors the common law alternatives of actual use and threatened use of violence. Therefore I agree with the learned lord justice that it is permissible in this case to take into account the common law decisions on what constitutes a threat of violence.

    12. In R v Sharp [1957] 1 QB 552, 559 Lord Goddard CJ in considering the offence of affray cited the institutional writers and said:

"The author who devotes most attention to the matter is Hawkins, in Pleas of the Crown (1824), 8th ed, vol 1, chap 28, p 488. He lays down that there may be an affray when there is no actual violence, as when a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people. This, he says, was always an offence at common law and dealt with by many statutes. He then quotes in particular the Assize of Northampton, 2 Edw 3, c 3. Dealing with that statute he says that no wearing of arms is within the meaning of this statute unless it be accompanied with such circumstances as are apt to terrify the people. The wearing of unusual or dangerous weapons in public is only one species of affray and in our opinion it is open to a jury to find that the circumstances amount to an affray although no person is actually called to say he was put in terror. Just as the mere wearing of a sword in the days when this was a common accoutrement of the nobility and gentry would be no evidence of an affray while the carrying in public of a studded mace or battle axe might be, …"

And, at p 560, Lord Goddard stated that an indictment for affray is one which alleges that

"the circumstances involve a breach of the Sovereign's peace, that it was a real disturbance of the peace by two persons fighting each other in public instead of settling their differences in the royal courts, or endeavouring by a display of force, though without necessarily using actual violence, to overawe the public, which was what was aimed at by the Assize of Northampton."

    13. In R v Taylor [1973] AC 964, Lord Hailsham of St Marylebone LC stated, at p 987A:

"the extent to which the 'display of force … without actual violence' constitutes the offence of affray even where the element of terror is present is still not wholly clear. It seems that the brandishing of a fearful weapon does constitute the offence, and has always done so, though in most cases where this is done by an individual, a charge under the Prevention of Crimes Act 1953 would now seem preferable. From the older authorities it seems plain enough that mere words, unaccompanied by the brandishing of a weapon or actual violence, are not enough. But all sorts of things are, arguably, a display of force. I am anxious that nothing in this case should be construed as necessarily implying that anything less than an unlawful participation in a violent breach of the peace will be enough to satisfy the requirement."

Counsel for the appellants relied on the last sentence in this passage, but Lord Hailsham recognised that it can be contended that various types of conduct may constitute a display of force, and I consider that this passage in his judgment does not assist the appellants' case but provides support for the view that the carrying of dangerous weapons by a group of persons can constitute the threat of violence. Smith and Hogan in Criminal Law 4th ed. (1978), p 757, in their definition of the common law offence, also take the view that the display of force alone can constitute the commission of an affray:

"1. Unlawful fighting or unlawful violence used by one or more persons against another or others; or an unlawful display of force by one or more persons without actual violence;

2. in a public place or, if on private premises, in the presence of at least one innocent person who was terrified; and

3. in such a manner that a bystander of reasonably firm character might reasonably be expected to be terrified."

    14. Other more recent cases cited by the appellants' counsel do not, in my opinion, advance the appellants' case. In R v Davison [1992] Crim LR 31 the defendant was convicted of affray where he had "swiped" a kitchen knife towards a police officer. In R v Dixon [1993] Crim LR 579 the defendant was convicted of affray where he and his Alsatian type dog were pursued by two police officers and cornered in the driveway of a house and he repeated "go on, go on" to the dog who ran forward and bit the police officers. No issue arose in either of those cases as to whether the carrying of a weapon could constitute a threat of violence.

    15. In R v Robinson [1993] Crim LR 581 the defendant was convicted of affray where he and his co-accused asked a motorist in an aggressive manner to drive them to a particular destination and threatened to take the car if he did not do so. Section 3(3) of the 1986 Act provides that on a charge of affray a threat cannot be made by the use of words alone, but at the trial counsel for the Crown argued that in addition to what was said there was conduct which created an aura of menace. The Court of Appeal allowed the appeal on the ground that the evidence was devoid of anything that went beyond the use of words alone. In R v Sanchez [1996] Crim LR 572 the defendant was convicted of an affray when she had lunged at her boyfriend with a knife in a car park. On appeal the Court of Appeal quashed the conviction because the trial judge had failed to direct the jury to consider whether a reasonable hypothetical bystander would have feared for his personal safety. Again neither of these cases was concerned with the issue whether the carrying of dangerous weapons by a group of persons can constitute a threat of violence.

    16. Therefore I am of the opinion that as a matter of law the carrying of dangerous weapons such as petrol bombs by a group of persons can constitute a threat of violence within the meaning of section 3(1). Whether it does so in a particular case is a matter for the tribunal of fact to decide having regard to the facts of the case. Accordingly I am in full agreement with that part of the judgment of Auld LJ where he said, at p 257C:

"In my judgment, the visible carrying in public of primed petrol bombs by a large number of what was obviously an East London gang out for no good was clearly capable of constituting a threat of unlawful violence. That is so whether it is characterised as a show of force or simply an obviously threatening spectacle, and regardless of the fact that the armed gang members were not yet throwing or brandishing their weapons.

I stress, however, that mere possession of a weapon, without threatening circumstances of the sort that I have mentioned, is not enough to constitute a threat of unlawful violence. So, for example, the mere carrying of a concealed weapon could not itself be such a threat."

    17. The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith [1997] 1 Cr App R 14, 17B:

"It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on."

    18. The appellants submit that the offence of affray requires three persons: a person who uses or threatens unlawful violence, a person at whom he directs the violence or threat (the victim), and a hypothetical bystander of reasonable firmness. The appellants further submit that the victim must be present at the scene. In support of this submission they rely on the words "towards another" in section 3(1). They contend that unlawful violence cannot be threatened towards another unless that other person is present. They rely on the judgment of Taylor LJ in Atkin v Director of Public Prosecutions [1989] 89 Cr App R 199, 204-205 where, in considering the words in section 4(1) of the 1986 Act, he said:

"The phrase 'uses towards another person' means, in the context of section 4(1)(a) 'uses in the presence of and in the direction of another person directly.'"

    19. The Crown submits that where a person is in possession of a weapon, such as a bomb, which if it were detonated could cause injury to persons close to, but not present at, the location where the offender is holding the bomb, violence would be threatened towards those persons within the meaning of section 3(1).

    20. The Crown also submits that in this case the group of youths were congregated near a block of residential flats at a time when people would be returning to them from work and it could be inferred that members of the public were bound to be in the vicinity even if they were not present at the scene where the youths were gathered.

    21. The Crown further submits that the judgment of Taylor LJ in Atkin v Director of Public Prosecutions on the meaning of the words "uses towards another person threatening … words" in section 4(1) of the 1986 Act does not assist in deciding the meaning of the different words in section 3(1) "uses or threatens unlawful violence towards another".

    22. If the point were to be determined by having regard only to the words of section 3(1), there would be some degree of force in the Crown's submissions, because I think that giving the words their ordinary meaning violence can be threatened towards another person even if that person is not present when the threatening conduct takes place. But section 3(1) was enacted to give effect to the recommendation of the Law Commission in its Report and in paragraph 3.15 of the White Paper setting out its proposals for the reform of Public Order Law (1985) Cmnd 9510 the Government stated in relation to affray that it was "content to accept the Law Commission's proposed statutory definition". Therefore it is permissible, and indeed desirable, for the courts to have regard to the view of the Law Commission on this issue and to know the basis on which it recommended that threatening unlawful violence towards another, as well as using unlawful violence towards another, should constitute the offence of affray (see: R v Shivpuri [1987] AC 1, 21B and M/S Aswan Engineering Establishment Co v Lupdine Ltd [1987] 1 WLR 1, 14E).

    23. In its Report the Law Commission discussed the elements of the statutory offence of affray which it was recommending and explained why, contrary to its earlier view, it considered that threats of violence, without the actual use of violence, should also constitute the offence. It is desirable to set out the relevant paragraphs in full:

"(a) Using or threatening violence

3.13 Common law affray requires the defendant to have engaged in unlawful fighting or violence, or a display of force without actual violence. All recent reported cases appear to have involved actual fighting or violence and, although the element of display of force is accepted as part of the law, precisely what this connotes is not clear: brandishing of a 'fearful weapon' is probably sufficient, but not 'mere words, unaccompanied by the brandishing of a weapon or actual violence'.

3.14 Primarily because of the absence of reported cases in recent times relating to the element of display of force, we proposed in our Working Paper that mere threats or displays of violence should be excluded from any new offence replacing the common law. We pointed to the range of other offences capable of dealing with such threats, and noted that the scheme of offences in the Working Paper made provision for penalties to be imposed for serious threats or displays of force by a group under the terms of the proposed statutory offence of unlawful assembly. Nevertheless, we stressed that, were evidence presented to us of the need to include threats within the new offence, the issue would require reconsideration.

3.15 A substantial majority of those commenting on our Working Paper approved our proposed exclusion of threats or displays of force. Cogent evidence has, however, been presented to us by others which persuades us that our provisional proposal should be changed. In particular, it has been urged on us that there is no reason of substance why, in this context, a punch thrown which misses should be distinguished from one which lands on another person; and, if there were insufficient evidence to show that any of those accused actually succeeded in hitting another, no-one, upon our provisional proposal, would have been guilty of the offence, and a person who punched but missed would not, therefore, have been liable for aiding and abetting. And a person closely connected with an affray, such as an individual brandishing a razor, would if threats were excluded from the ambit of the offence, not be guilty of it. Some threats of violence might be met with charges of possessing an offensive weapon under the Prevention of Crime Act 1953; this, however, would only be the case if there were proof of such possession, and in the case of, say, a mob terrifying shoppers in a shopping precinct there may be insuperable difficulties in proving which person had a particular weapon.

3.16 These examples of the difficulties which could arise on our provisional proposals have impressed us. Perhaps the most persuasive argument is that, under those proposals, those engaged in what was in all respects one incident would have been capable of being prosecuted only be means of charges of different offences—affray and unlawful assembly—according to whether it appeared that they were hitting another or merely threatening to do so. In the context of street fighting such a distinction seems artificial: we believe, on reconsideration, that any offence which is aimed, in broad terms, at unlawful fighting to the terror of the public should be capable of penalising all those concerned in a particular incident, whether the evidence is that—

in some cases blows actually landed on others,

in others it is uncertain whether blows landed, or

some defendants were merely threatening blows.

Under our provisional proposals, only those falling within (i) would have been liable to be penalised for affray. We now recommend that under any new offence persons in all three categories should be liable. This will enable the court to do justice on the whole of the evidence relating to a particular incident. It must be accepted, however, that a broadening of the categories of prohibited acts in this way would permit the offence to be charged when no-one was actually engaged in acts of fighting. On the other hand, common law affray can at present be charged where the relevant conduct consists of threats alone, but we have no evidence that the offence is used in that way save where it is justified by quite exceptional circumstances. We would expect no change in prosecution practice under any new offence replacing the common law."

    24. Therefore it is apparent that the Law Commission and Parliament intended that the offence set out in section 3 should penalise those who engage in a fight, whether they are landing blows, or attempting to land blows, or threatening to land blows, but it is also clear that in such circumstances the victim or victims are bound to be present with the offender or offenders. Accordingly I regard it as clear that the section does not make guilty of an affray a person whose conduct constitutes a threat of violence to persons who are not present. This conclusion also derives support from the requirement in subsection (1) that the conduct of the offender is such that it would cause a bystander "present at the scene" to fear for his personal safety. The concept of presence at the scene suggests that the notional bystander would be in the presence of both the offender and the victim. It is also relevant to observe that there is no reported case of affray where the victim was not present at the scene where the accused threatened violence.

    25. In the Divisional Court Auld LJ stated, at pp 258 and 259:

"In my judgment, where there is a threat of violence taking the form of a gathering of armed persons in a public place, it is not necessary to prove that a person or persons present actually felt threatened (see Swanston v Director of Public Prosecutions, [(1996) 161 JP 203]. It is plain from the sight of an armed gathering in public that at least those openly displaying their weapons constitute a threat of violence to someone. That could be any local resident or other member of the public who happened to see them and also police officers called to the scene. The hypothetical bystander, for whose protection the offence of affray is primarily designed, is not to know precisely when and where and towards whom the threatened violence will occur. It is enough for him that there is such a threat to someone which puts him in fear.

This is not introducing into the offence of affray a notional victim of threatened violence to join the notional bystander of reasonable firmness. There must have been someone at or in the vicinity towards whom the threat of violence can be said to have been directed. Often that can readily be inferred where such behaviour takes place in a public place, and, as I have said, may include police officers who attend, whether or not, when there, they perceive a threat of violence directed towards themselves. The circumstances of explosive devices such as those here would constitute a threat towards anyone in the immediate vicinity and in all directions, whatever their lack of connection with those charged or their role at the scene.

Here, the obvious inference from the scene of a threat of violence by the group of armed youths towards someone other than themselves had as its background the magistrate's unchallenged finding that in that part of the East End of London there were street gangs who were territorially based and that there was bad blood between them. He was entitled also, in the special circumstances of this case, to find, as he did, that the diffuse threat of violence, inherent in the overt carrying of petrol bombs—highly dangerous and untargeted in their effect if exploded—constituted a threat of violence to anyone in the vicinity, including the police on arrival on the scene. The police officers' perception, or lack of it, of themselves as particular targets is immaterial.

Accordingly, I would answer "yes" to the second question, that of whether a threat of violence towards an unknown person or persons or the public at large at the scene amounts to a threat of unlawful violence towards another.

It follows from what I have said that it is not necessary to answer the third question, which goes in the main to the police witnesses' own perception of a threat of violence. The fact that they did not speak of a threat, in the form, say, of brandishing the petrol bombs either at others or themselves, and that one of them merely thought, whether before or on arrival at the scene, that there could be a disturbance, does not mean that there was no evidence, on the facts as found by the magistrate, of a threat of unlawful violence towards another or others. For the reasons he gave and which I have in substance and at greater length repeated, there plainly was."

Hughes J stated, at pp 260 - 261:

"5. Affray does require the presence of a person threatened. The person of reasonable firmness who is referred to in section 3(1) is a hypothetical person. He is often conveniently referred to as the 'hypothetical bystander'. He represents the standard by which the gravity of the behaviour is to be judged and he demonstrates that this public order offence is designed for the protection of the public. But although the bystander is hypothetical, the person threatened with unlawful violence is not. It seems to me possible that the person who is threatened may be unaware of it, for example, if his back was turned. However, the person threatened must exist and he or she must be there.

6. Such person threatened may, however, be of unknown identity. Moreover, a threat may be made generally in a populous place to all about. In a case like the present, that might include the men, women and children able to see from the windows of the flats, or those who were entering or leaving at a little short of 7 pm. Even without the evidence of such a person being given to the court, a court is entitled in an appropriate case to conclude, as a matter of fact, that such persons were indeed threatened by the conduct of the defendant. Indeed, in the present case, someone telephoned the police. However, in the present case, the magistrate has specifically found, as follows:

'Aside from the police no other persons and in particular no member of any other gang was shown to be present at the scene at 6.50 pm'.

He has therefore not found, as he might perhaps have done, that others were there and were threatened. A finding that there was no one there to be threatened but anyone who might appear in the future would be likely to be threatened is not sufficient.

7. That a police constable thinks that a disturbance might ensue is not by itself enough. If what he contemplates is no more than a future event, there is no present threat. Affray requires a threat rather than a risk of a future threat.

8. On the special facts of this case, for the reasons that have been fully explained by Auld LJ, the magistrate was entitled to conclude that, whether or not the police officers said that they felt threatened, the threat was a general one, and was in fact made towards them at a time when they were present."

    26. Therefore both Auld LJ and Hughes J recognised that the victim or victims towards whom the threat is directed must be present. But I consider, with respect, that they erred in applying this requirement to the facts as found by the Stipendiary Magistrate and set out in the case stated. It was not open to Auld LJ to find that the overt carrying of petrol bombs constituted a threat of violence to anyone in the vicinity, including the police on arrival at the scene, because the Magistrate found that no one other than the police was present at the scene, and he also found by clear implication that the group of youths constituted no threat towards the police as the group dispersed immediately the police carrier came into view. Similarly it was not open to Hughes J to find in paragraph 8 of his judgment that there was a threat towards the police officers. In order to constitute an offence under section 3 there must be a threat of violence towards another person. Whilst the carrying of petrol bombs can constitute a threat of violence, it does not necessarily follow that because a person is present at a location where a gang are carrying petrol bombs there is a threat of violence towards that person. Whether there is a threat of violence towards a person present at the scene constituted by the carrying of a weapon or weapons will depend on the facts of the actual case, but that issue does not arise in the present case because, apart from the police officers towards whom there was no threat, no one was present at the scene.

    27. Accordingly I would answer "Yes" to the first certified question and "Yes" to the second (reformulated) question and would allow the appeals on the ground which I have stated in relation to the second question. I think that the third certified question was intended to relate to a situation where a person threatened was not present at the scene, and therefore it does not now arise for consideration.

    28. The appellants were clearly guilty of criminal conduct and it would have been open to the prosecuting authorities to have charged them with the carrying of an offensive weapon contrary to section 1 of the Prevention of Crime Act 1953 or with possession of explosives contrary to section 4 of the Explosive Substances Act 1883. It appears that there is an increasing tendency to charge the offence of affray and in the year 2000 there were 1,891 offences of affray charged in the Metropolitan Police area. The present case demonstrates that a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    For the reasons given by my noble and learned friend Lord Hutton, with whose speech I agree, I too would allow these appeals and answer the questions as he proposes.

LORD SCOTT OF FOSCOTE

My Lords,

     I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hutton. For the reasons which he gives, I, too, would allow these appeals and respond to the certified questions as he proposes.