REPORTS OF COMMITTEES

Transcription

1 REPORTS OF COMMITTEES THE LAW COMMISSION: CRIMINAL LAW: OFFENCES RELATING TO PUBLIC ORDER (LAW COM. No. 123) As part of its programme of codification of the criminal law, the Law Commission has proposed the abolition of the common law offences of affray, unlawful assembly, riot, and rout, and the replacement of the first three by new statutory offences. It also recommends the repeal of certain old statutory offences. Many aspects of the law relating to public order are not covered by this Report. The Public Order Act 1936 and related legislation,* the scope of police powers to control demonstrations, and calls for the enactment of a new Riot are all being considered by the Home Office and the Commission saw no need for a separate review. As its principal concern is with serious offences to deal with serious disturbances, the offences of wilful obstruction of the highwa wilful obstruction of a constable in the execution of his dut YJ4 were and excluded. The common law crime of public nuisance, which has on occasion been used to penalise sit-down demonstrations,6 was also omitted on the ground that to review it in this context would be impracticable and unduly time-consuming. However, the Commission recommend that if the offences it proposes are enacted, public nuisance should not be charged in circumstances of disturbances to public order. The Conimission took the view in the Working Paper which preceded this Report that its task was to restate in a modern statutory form the present common law, rather than to attempt any radical restructuring. It gave two reasons for this approach: first, that there was general acceptance that offences carrying a heavy maximum penalty were required. to penalise serious disruption to public order, and secondly, that it should move with caution in an area so closely connected with fundamental liberties. The Report follows the same general approach. The new statutory offences set out in the Workinn - Paper - have been redrafted in the light of comments on those proposals. The Commission s aim has been to I Rout agrees in all particulars with riot except that it may be complete without the execution of the intended enterprise. There seem to have been no prosecutions for this offence in modern times. See Review of the Public Order Act 1936 and related legislation (1980). Cmnd. 7891: Fifth Report of the Home Affairs Committee, The Law Relating to Public Order ( ). H.C The need for this was rejected by Lord Scarman: Report on The Brixton Disorders April 1981 (1981), Cmnd. 8427, paras Highways Act 1980, s.137. Police Act 1964, ssl(3). R. v. Mode (19643 Crim.L.R. 303; R. v. Adler [ Crim.L.R. 303; R. v. Cfark (No. 2) ( ,Q.B Law Commission Working Paper No. 824ffences against Public Order. For commentaries on the Working Paper, see Smith I19821 Crim.L.R. 485 and Suppentone (19821 P.L

2 May REPORTS OF COMMITTEES 325 present a more coherent structure of readily comprehensible offences and to remove the anomalies and uncertainties of the common law. The Report also contains a Draft Criminal Disorder Bill. It is intended that each offence should be an alternative to the other on indictment, so that a defendant found not guilty of riot, for example, could still be convicted of the less serious new offences of violent disorder or affray. Much of what follows on affray, which is the most frequently used of the common law offences and is looked at first in the Report, is also relevant to the other proposed offences. Affray The crime of affray was established in the sixteenth century6 but fell into desuetude; R. v. Sharp and Johnson in 1957 was the first English reported case for over one hundred years. Since then, it has been used regularly, and 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 elements of affray are: (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 chaiacter might reasonably expect to be terrified. Other offences, usually offences against the person, are often charged with it. The Law Commission consider that abolishing affray without replacement would leave a significant gap in the law. [Alffra y is designed to deal with a type of conduct in which, by contrast with offences against the person, both the identity of the victim and the extent of his injury are immaterial.... [Its] essence... lies... in the fact that the defendant participates in fighting or other acts of violence inflicted on others of such a character as to cause alarm to the public.... I* Moreover, charging affray avoids the need to prove who did exactly what to whom in a confused situation where violent participation in a fight may be the only evidence against a defendant.13 The proposed statutory offence is similar to, but broader than, the common law. Where two or more persons use or threaten unlawful violence against each other, or one or more persons use or threaten unlawful violence against another, whether in a public or private place, and the conduct of those using or threatening violence is such as would cause a Derson of reasonable firmness Dresent at the Brownlie s Law of Public Order and National Security (2nd ed., 1981). p.140. [1957] 1 Q.B lo Report, para See Appendix B for prosecutions for this and the othcr common law offences Smith and Hogan, Criminal Law (5th ed., 1983). p.738. Iz Working Paper, para I R. v. Bufron and Swain [I9661 A.C Cf. Smith and Hogan, supra, p.741 which argues that it is difficult to imagine situations where a defendant could be convicted of affray but not of assault.

3 326 THE MODERN LAW REVIEW [Vol. 47 scene to fear for his personal safety 14 each of them would be guilty of affray. The offence would be triable either way, with a maximum penalty on indictment of three years imprisonment and a fine. As with the other proposed offences, the defendant will be guilty only if he intends the prohibited conduct, in this case using or threatenin violence, or is aware that his conduct may be of that description. i3 A person whose awareness is impaired due to intoxication is deemed to have the awareness of one who is sober unless he shows the intoxication was not self-induced or that it was caused by a substance administered in the course of medical treatment. The Working Paper proposed restricting affray to actual fighting or violence on the ground that other offences were capable of dealing with mere thread6 and the majority of commentators agreed with this. Although the common law offence covers a display of force, all recent case law has involved actual violence. However, the Commission finally concluded that it was artificial in the context of street fighting to distinguish between blows which landed on another and those which were merely threatened. The meaning of display of force has never been clear. Lord Hailsham suggested that the brandishing of a fearful weapon was sufficient but not mere words, unaccompanied by the brandishing of a weapon or actual ~iolence. ~ The Commission specifically excludes threats by words alone in this context but avoids any further definition. It recommends that conduct consisting merely of threats should be prosecuted only in exceptional circumstances. For all the proposed offences violence is defined as any violent conduct which is not restricted to conduct causing or intended to cause injury or damage but includes... for example throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short. 18 (This definition is particularly crucial for violent disorder and riot, where actual violence is required.) The common law principle for affray that only one person need be unlawfully fighting is pre~erved. ~ Thus the offence will be committed if the person attacked submits to the violence or defends himself or otherwise acts lawfully. Like common law affray, the statutory offence may occur either in public or in private.20 The requirement that the conduct might reasonably inspire terror in a bystander of reasonably firm character is recast. Terror is thought to have an antique flavour which makes it an inamrouriate exmession for a modern statutory off- I Report, para Is This formula was chosen to achieve consistency with the mens rea required under the Offences against the Person Act 1861 and common law assault and battery before R. v. Seymour ( W.L.R. 349: see Report paras l6 Prevention of Crimes Act 1953, s.l(l); Public Order Act 1936, s.5; however, these on1 cover conduct in ublic places, I 7 Taylor v. D.P.P A.C. 964, 987. See also R. v. Sharp and Johnson, supra. In Report, Appendix A, cl. 8(1). Iq Taylor v. D.P.P., supra. 2o Burton v. D.P.P. [ A.C. 591.

4 May REPORTS OF COMMITTEES 327 ence 121; the conduct must be such as would cause the bystander of reasonable firmness present at the scene to fear for his personal safety. Although the notion of terror might suggest a higher degree of alarm than mere fear 22 this change would probably not make much difference in most cases. More significant is the abolition of the distinction the common law probably makes between public and private premises so far as the need for the actual presence of a bystander is concerned. For private premises, Lord Hailsham suggested obiter in Taylor v. D.P.P. that it would be surprising if affray could be complete without the actual presence of onlookers... to be frightened by the sight or sound of what was occurring. = For public places, it seems sufficient that the conduct might well have terrified notional ordinary bystanders had they been present, although Lord Reid in TayZor saw no difference in principle between violence in a public or private place. The Commission see no justification for requiring the presence or likely presence of third parties in either public or private piaces. To require proof of actual fear by bystanders would, they argue, exclude many cases of serious fighting, when any bystanders present would probably leave the scene, and therefore to require their presence would be otiose; the function of the bystander is simply to act as a measure of the requisite degree of violence. 26 Moreover, the distinction between public and private places could be a fine one, for example a fight at a social gathering on private premises could spill out on to the adjacent roadside, and where the conduct related to a single event occurring in both, it would be illogical to apply different tests. Lastly, the Commission argues, those fighting in a private place may choose to do so in the knowledge that others may not be present and there is a public interest in preventing unlawful fighting. Given that the rationale of affray is the alarm unlawful violence may cause the public, this seems an odd consideration to introduce. The Commission interpret present at the scene as meaning anyone who would have been in real danger of becoming involved in the disturban~e ~ and consider that this would exclude from the offence a personal quarrel between two people involving mutual assaults without the danger of others becoming involved or a duel on an occasion when no one else would be endangered, circumstances which it thinks should be excluded. However, a bystander might realistically fear involvement in a personal quarrel-few fights are as Working Paper, para ZI Suppentone, supru, p.356. r, Supru at p.987. See also Smith and Hogan, supru, p.740. R. v. Sharp and Johnson, supru; R. v. Mapsfone [1963] 3 All E.R. 930; Lord Hailsham in Taylor v. D.P.P., supra at p.987. Supra at p.990. In R. v. Furnill (19821 Crim.L.R. 38 (Leeds Crown Court) it was suggested thavthere must be a reasonable likelihood of a third party coming upon the wne. Working Paper, para Report, para

5 328 THE MODERN LAW REVIEW [Vol. 47 formalised as a duel2* (This is one context where removing the requirement of terror might be significant.) Whilst it seems justifiable not to require the actual presence of bystanders in public places, not to require at least the reasonable likelihood of third parties being present, if not their actual presence, on private premises erodes the public order character of the offence. The Working Paper suggested a maximum prison sentence of 10 years for affray. A number of reasons for reducing it to three are given in the Report: the inclusion of threats of violence as well as actual violence; evidence that in recent years per cent. of defendants convicted of affray receiving a prison sentence were sentenced to periods of three years or lessz9; and the availability of offences against the person carrying a higher maximum penalty which could probably be proved where more than three years was thought appropriate. As a substantial proportion of defendants have received sentences falling within the competence of magistrates to impose, the option of summary trial is proposed; more serious or lengthy cases would still be tried on indictment. Unlawful Assembly According to Smith and Hogan, unlawful assembly requires (1) An assembly of three or more persons; (2) A common purpose (a) to commit a crime of violence, or (b) to achieve some other object, whether lawful or not, in such a way as to cause reasonable men to apprehend a breach of the peace. However, neither judges nor commentators agree on the precise scope of the offence. Conduct which leads to violence by others is capable of constituting unlawful assembly, but it is unclear exactly when this will be the case.32 The Law Commission endorse the common law view that weight of numbers increases the gravity of a public order offence. It proposes replacing unlawful assembly with two new statutory combination offences: violent disorder, and conduct intended or likely to cause fear or provoke violence. Both offences would be triable either way; the former would carry a maximum penalty of five years imprisonment and a fine, the latter a maximum of two years imprisonment and a fine. (The Working Paper proposed a complex single offence which penalised both a group whose purpose was to use or threaten violence or to provoke others to use violence and a group actually using violence with the same maximum penalty.) For both these offences, and for riot, violence includes violent conduct towards In Taylor v. D.P.P., supra at p.987, Lord Hailsham opined that a duel would be an affray. Ip See Brownlie. supra, pp for a discussion of sentencing policy. y, Criminal Law, supra, p.732. I See R. v. Chief Conrtable of Devon and Cornwall, ex parte Central Electricity Generating Board [198l] 3 W.L.R. 967 where the definitions offered by Lord Denning M.R. (at p.976) and Lawton L.J. (at p.981) differed considerably. I* See Beatfy v. Gillbanks (1882) 9 Q.B.D. 308 and Brownlie, supra, pp

6 May REPORTS OF COMMIlTEES 329 property as well as towards persons. Like unlawful assembly, both offences may occur either in public or in private.33 (i) Violent Disorder Where three or more persons are present together using or threatening unlawful violence to the person or property, whether in a public or private place, and their conduct, taken together, is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety each of the persons using unlawful violence would commit violent disorder. 34 This offence is intended to deal with persons participating in public disorder whose conduct has gone beyond the stage of mere threats of violence, but in respect of whom a charge of... riot could not be br~ught. ~ Unlike riot, the participants need not share a common purpose and violent disorder could be charged instead of affray where three or more persons were unlawfully fighting and the more serious offence was considered appropriate. Unlike affray, threats in the form of words are not excluded but the defendant must himself have used actual violence. For unlawful assembly, it is probably unnecessary to prove that any bystander was present where the unlawful purpose is to be effected in a public place36 but it seems that the presence, or at least likely presence, of innocent third parties is required for private premises. It is their presence, or the likelihood of it, and the danger to their security... which constitutes the threat to the public peace and the public element necessary to the commission of... [the] ~ffence. ~ As with the proposed offence of affray, violent disorder does not require the actual or likely presence of a bystander. Again, this throws into question the public order dimension of the offence where it occurs on private premises. Whether or not an attack on property could cause the notional bystander to fear for his personal safety would depend on the circumstances; the Commission suggest that an attack on an abandoned house, for example, may not constitute the offence. (ii) Conduct Intended to or Likely to Cause Fear or Provoke Violence Where three or more persons present together, whether in a public or private place, use threatening, abusive or insulting words or behaviour which is intended or is likely either to cause another person to fear immediate unlawful violence to the person or property or to provoke the immediate use of such violence by another person, each of them commits the ~ffence. ~* This offence draws on the Kamara v. D.P.P. [ A.C Report, para Report;para Smith and Hogan, supra. p.733. Kamara v. D.P.P.. supra, Lord Hailsham at p.116. yi Report, para

7 330 THE MODERN LAW REVIEW [Vol. 47 concepts used in section 5 of the Public Order Act and in so doing the Commission seeks to incorporate the essence of Beatty v. Gillbanha in relation to provocation. It considers that using threatening, abusive or insulting words or behaviour sets the appropriate threshold of ~riminality ~ in this context. The House of Lords has said in relation to section 5 that these words must be given their ordinary meaning, which is a question of The Commission has avoided the concept of a breach of the peace, which has been subject to inconsistent interpretations by the One aspect of the first limb of this offence-causing another to fear immediate unlawful violence-is probably not covered by section 5, which seems to require a breach of the peace by a person other than the defendant.44 It is sufficient that the bystander is intended or likely to fear violence to any person or property, not necessarily his own. This is wider than a breach of the peace, which covers damage to property only in the presence of the person whose property is harmed or threatened.45 The violence must be immediate ; this is intended to exclude meetings at which those present threaten the use of violence at some time in the future. Following section 5, the offence will not require that anyone should feel himself to be threatened, abused or insulted.46 The Commission provide an illustration of these principles in operation. If a gang in one part of a town uttered threats against a particular ethnic group resident in another part, or against a particular property situated in another part, the offence would be committed even though those present realised the threats were not directed against them. It is unclear, however, how the test of immediacy would apply here. Unlike affray, violent disorder and riot, the actual presence of another person is required for tre offence on the ground that there would otherwise be no danger to the public peace. Where the offence consists of provocation, it may be, by analogy with section 5, that no offence is committed if no one is present who is likely to be provoked, for example if the only third parties are ~olicemen.~ The mem rea of section 5 is not entirelv clear.48 For s.5 makes it an offence in any public place or at any public meeting, inter olio, to use threatening, abusive or insulting words or behaviour... with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned... (as substituted by the Race Relations Act 1%5. s.7). It is triable only summarily. That persons acting lawfully are not to be punished because other persons are thereby induced to act unlawfully unless (per Field J.) it was their intention to create a disturbance or this was the natural and necessary consequence of their acts. See Brownlie, supru, pp for a critique of this judgment. I Report, para > Brurur v. Cozens I1973 A.C R. v. Howell (Errol) \I~MI 3 W.L.R. 501; R. v. Chief Constable of Devon ond Cornwoll, ex porre Centrol Electriciry Generoring Boord, supro. See Morris (1982) 45 M.L.R See the discussion of forkin v. Normon [1983] Q.B. 92 and Marsh v. Arscotr (1982) 75 Cr.App.R in Re rt, paras s R. v. Howell (Errorsupra, Watkins L.J. at p.509. Porkin v. Normon, supro. See the references in note 44. Smith and Hogan, supro, p

8 May REPORTS OF COMMITTEES 33 1 this new offence, the defendant must intend to use threatening, abusive or insulting words or behaviour or be aware that his words or behaviour may have that character. Usually this will be evident from the character of the words or behaviour in question. Once this requirement is satisfied, presumably the group must take its audience as it findsit where the charge is based on the likelihood of provoking others to violence.49 The Commission recommend a specific power of arrest for a constable who reasonably suspects a person to be committing this offence.50 Riot The necessary elements of riot at common law are (1) Number of persons, three at least; (2) common purpose; (3) execution or inception of the common purpose; (4) an intent to help one another by force if necessary against any person who may oppose them in the execution of their common purpose; (5) force or violence not merely used in demolishing, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage. It has been charged in only a handful of cases in recent years, perhaps because of difficulties of proof, perhaps because it is seen as a politically sensitive offence. Participants in a riot nearly always commit some other offence; an offence against the person, criminal damage, affray or an offence under section 5 of the Public Order Act Under the Commission s proposals, the offence of violent disorder would also be available. Nevertheless, the Commission sees a need for a new offence of riot to deal appropriately with those promoting or taking an active part in wide-scale public disorders Its absence would fail to give due recognition to the added threat posed by a number of people acting together to achieve a purpose.53 Moreover, there may be individuals whom it might well be impossible or inappropriate to prosecute by means of charges of offences against the person or property. 54 A high maximum penalty should be available for those inciting or conspiring to riot. The Commission propose that [wlhere twelve or more persons are present together, whether in a public or private place, using or threatening unlawful violence for some common purpose (which may be inferred from their conduct) and their conduct, taken together, is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of those persons who uses unlawful violence for the common DurDose would commit the 49 Jordan v. Burgoyne [1%3] 2 Q.B Violent disorder and not would be arrestable offences under the Criminal Law Act 1967, s.2. This specific power is also recommended for affray, although the common law power to arrest for a breach of the peace, or an apprehended breach of the peace, would seem adequate. Field v. Receiver of Metropolitan Police [1907] 2 K.B. 853, 860. s* Report, para s3 See R. v. Caird (1970) 54 Cr.App.R Report, para. 6.8.

9 332 THE MODERN LAW REVIEW [Vol. 47 offence of riot. The offence would be triable only on indictment with a maximum penalty of 10 years imprisonment and a fine. The figure of 12 is chosen as being substantial enough to indicate that the offence is concerned with numbers. 56 This is a welcome change from the Working Paper, which proposed to retain the common law figure of three, and restricts the offence to large-scale disturbances. As in the case of violent disorder, threats can include words but the defendant himself must use actual violence, a requirement intended to exclude innocent bystanders from being implicated in the offence. The common law requirement of common purpose is retained. Purpose here does not mean motive, nor is evidence of some prior plan of action required; purpose can be inferred from conduct, such as attacking the police. The purpose itself need not be unlawful. It may be the case at common law that if the purpose is of a public, rather than private, nature, so as to amount to treason, then the conduct is not riotous ; the statutory offence makes no such distinction. Intoxication may prevent the formation of the necessary common purpose but a defendant whose intoxication was selfinduced could still be convicted of violent disorder. As with the proposed offences of affray and violent disorder, and as at common law, the not may take place on public or private premises and the presence or likely presence of a third party is not required (the common law is unclear on this). The comments made as to the erosion of the public order character of affray apply equally in this context. The Commission propose that prosecutions for not should be brought only with the consent of the Director of Public Prosecutions, who would be able to consider whether a charge was in the public interest. A maximum prison sentence of 10 years is considered to reflect, on the one hand, the gravity of the crime, but on the other, the fact that no injury to the person or damage to property need be proved. (The sentence of 14 years proposed in the Working Paper seemed excessive.) Miscellaneous Statutory Offences A number of statutes have been selected for repeal on the grounds that they are obsolete or seem archaic. These are the Tumultuous Petitioning Act 1661 and the Seditious Meetings Act 1817, under which there have been no reported prosecutions in modern times; the Shipping Offences Act 1793, and section 4 of the Vagrancy Act 1824, so far as this penalises the possession of offensive weapons. The repeal of section 54(13) of the Metropolitan Police Act 1839 and section 35(13) of the City of London Police Act 1839, which are the same in material respects as section 5 of the Public Order Act 1936, is also recommended. J5 Report, para y, Report, para Brownlie, supra, p.132.

10 May REPORTS OF COMMITl'EES 333 Conclusion Statutory redefinition of the offences of affray, unlawful assembly and riot is long overdue, and the Law Commission's proposals would undoubtedly give the law greater clarity. However, the rationale of these offences, and the penalties they carry, is the alarm violent or threatening behaviour may cause the public and it is submitted that the Commission has paid too little regard to this consideration. The Commission has attempted, in the offence of conduct intended to or likely to cause fear or provoke violence, to set the appropriate limits on freedom of expression but has been able to explore the issues within only a narrow framework. All offences relating to public order, and police powers to control meetings and demonstrations, require re-examination together within a framework which analyses and articulates the values to be placed on freedom of assembly and expression on the one hand and the preservation of public order on the other. GILLIAN S. MORRIS* Senior Lecturer in Law, Polytechnic of North London.