Affray – Bystanders – Threatening to kill – Public Order Act 1986

Carol Leeson v Director of Public Prosecutions: DC (Lord Justice Pill, Mr Justice Rafferty): 16 April 2010

The appellant (L) appealed by way of case stated against a decision of the magistrates’ court convicting her of the offence of affray. L and her partner (O) shared a home with their two children. L had a long-standing alcohol problem and personal psychiatric difficulties. One evening, at a time when the children were away and were not expected home, O had been upstairs taking a bath when L returned from a local public house drunk, entered the bathroom with a kitchen knife with a six-inch blade and informed O: "I am going to kill you." Her demeanour was calm and she was not hysterical. O disarmed her easily and, after returning the knife to the kitchen and phoning a neutral friend (D) for support, called the police. L was arrested and charged with affray contrary to section 3 of the Public Order Act 1986 on the basis that she had used or threatened unlawful violence against another and conduct such as to cause a person of reasonable firmness present at the scene to fear for his personal safety.

At L’s subsequent trial before the magistrates, O, who did not wish the prosecution to proceed, was treated as a hostile witness. Following cross-examination, it was established that, at the time of the incident, the house had been securely locked and O had not felt directly threatened by L nor believed that she intended to use violence towards him. The magistrates found that, while the chance of anyone, such as D, arriving at the house while L was in possession of the knife was low, they could not discount it, and that, since L had made a threat to kill while holding a knife, that would have made a hypothetical bystander fear for his safety. They therefore convicted L of affray. The question posed for determination by the High Court was whether the magistrates were correct in deciding that an offence of affray might be committed in the circumstances of L’s case where, as they found, the likelihood of a hypothetical person of reasonable firmness being present was low.

Held: The offence of affray was aimed at the protection of a bystander from fear of unlawful violence. The offence was not to be extended so widely as to cover every case of common assault. It was not enough for the prosecution to prove that unlawful violence had been used: there had to be violence of such a kind that a bystander would fear for his safety, R v Davison [1992] Crim LR 31 CA (Crim Div), R v Sanchez (Tina) [1996] 160 JP 321 CA (Crim Div), R v Plavecz (Steven) [2002] EWCA Crim 1802, [2002] Crim LR 837 and R v Blinkhorn (Michael) [2006] EWCA Crim 1416 applied.

In the present case, having found that there was a possibility, albeit a remote one, that a bystander might be present, the magistrates had in theory been entitled to convict L of affray. However, that conclusion was troubling, given the facts of the case. The events had taken place within a matter of seconds in an upstairs room of an unoccupied house with no expectation of a third party coming home, let alone into the bathroom. The facts supported the conclusion that the threat was personal and restricted to turbulence between the two individuals involved. Though a remote possibility of a bystander arriving could give rise to affray, there was no such possibility in the present case. The exchanges between L and O had been in private and were not capable of engaging fear in another. In those circumstances, it was not open to the magistrates to have reached the conclusion they had. The conviction could not be supported and the answer to the question posed was in the negative. The matter was, accordingly, remitted to the magistrates with a direction to acquit L.

Appeal allowed.

Arthur Blake (instructed by Darbys (Oxford)) for the appellant; Kate Tompkins (instructed by the CPS) for the respondent.