NW, R v [2010] EWCA Crim 404

Case No 200904547B4[2010] EWCA Crim 404IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
(His Honour Judge Waller)
T20080945
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 March 2010
Before
LORD JUSTICE MOORE-BICKMR JUSTICE SILBERMR JUSTICE KENNETH PARKER
Between
THE QUEENRespondentNWAppellant
Mr. Dean George for appellantMr. Martin Goudie for respondentHearing Hearing dates : 11 th February 2010
JudgmentLord Justice Moore-Bick :
[1]This appeal raises a question relating to the interpretation of s.2 of the Public Order Act 1986, the material parts of which provide as follows:
“2.— Violent disorder. (1) 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, each of the persons using or threatening unlawful violence is guilty of violent disorder. (2) It is immaterial whether or not the 3 or more use or threaten unlawful violence simultaneously.”
[2]The events giving rise to the conviction of the appellant of an offence under that section occurred during the afternoon of 16th July 2008 in Croydon town centre. They arose out of an incident, trivial in itself, which developed into a violent confrontation between two police officers and a crowd of people which was said to number at its height between 40 and 100 persons. The events, or different parts of them, were witnessed by a large number of people whose accounts, not surprisingly, were not in all respects consistent with each other. However, it is sufficient for present purposes to give a relatively brief description of what occurred.[3]The incident began towards the end of the afternoon when local children had left school. The appellant, a schoolgirl in uniform then aged 15, was sitting on a bench with another girl, S, who was sitting on her lap. As two police officers were passing S dropped a piece of litter and one of them told her to pick it up. She did so, but as they walked on she dropped it again. The officers returned and asked her to pick it up again. When S failed to comply one of the officers, PC Smith, took hold of her arm and started to lift her up.[4]At that point the appellant became involved, grasping S’s jacket as if to hold her down. The second officer, PC Lathwood, seized the appellant’s hand and bent her thumb back to force her to release her grip. One thing led to another and the incident escalated into a scuffle between PC Lathwood and the appellant. There was a certain amount of shouting and at one stage PC Lathwood struck the appellant several times on the back of her thighs with his baton. A crowd began to gather. Some members of the crowd shouted abuse at the officers and others became directly involved in the incident, pulling PC Lathwood away from the appellant and down onto the ground in order to prevent him from arresting her. The actions and tone of the crowd were hostile and threatening towards the officers. At one point during the disturbance the appellant bit PC Lathwood on his shoulder or upper arm. He tried to restrain her using handcuffs, but the crowd prevented him from doing so. Finally, PC Smith used his CS spray and succeeded in subduing the appellant who was taken into custody. Other officers arrived on the scene and the crowd melted away.[5]The appellant was charged with violent disorder contrary to s.2 of the Public Order Act 1986 together with two others who had been present and who had subsequently made complaints about the officers’ conduct. She and her co-defendants were tried before H.H.J. Waller and a jury at the Crown Court at Croydon between 15th and 28th July. The prosecution’s case at trial was that the two police officers had acted properly and that the appellant’s behaviour had amounted to unlawful violence into which other people had been drawn. The defence case was that the confrontation between the appellant and the two officers had concerned her alone. Although others had gathered when they saw what was going on and had intervened to prevent the officers from arresting her, she was not acting in concert with them and was therefore not “present together” with others who had used or threatened violence within the meaning of section 2 of the Act. The appellant also raised the issue of self-defence.[6]At the close of the prosecution’s case the appellant’s counsel made a submission of ‘No case to answer’ on the grounds that there was insufficient evidence on which the jury could find that she was one of three or more people present together who had used or threatened violence. Her co-defendants made a similar submission on the grounds that there was insufficient evidence to enable the jury to be sure that they had been among those using or threatening violence. The judge directed that the two co-defendants be acquitted, but he rejected the appellant’s submission and the trial proceeded.

The judge gave the following reasons for rejecting the submission:

“Violent disorder is of course a statutory offence defined by section 2 of the Public Order Act. In contradistinction to a riot, which is covered by section 1 of the same Act, it is not part of the offence that those present have to have a common purpose. Indeed classically in violent disorder very often there is no common purpose other than that one group or other wishes to fight another group, and sometimes then all turning on the police. . . . Once the violence had been commenced by [N] against the officers and others joined in, whether it was because they saw a chance to attack [the] officers or whether it was defence of another which went beyond reasonable lawful self-defence, the offence would be made out.”
[8]When he came to direct the jury on the ingredients of the offence of violent disorder

the judge said:

“What do you have to be sure about? Well, you have to be sure there are three or more persons present together. One of those is obviously the defendant. Others may be known persons or unknown persons. In this case the prosecution say they are unknown persons. Some of the girls, some of the young men who were there, they say, were using or threatening unlawful violence on this occasion, and they were present together, all together. They must use or threaten unlawful violence, either is sufficient, and the conduct of them taken together must be such as would cause a person of reasonable firmness present at the scene to fear for his personal safety. They don’t all have to act simultaneously. . . . So before you could convict [N] of violent disorder you must be sure that she used or threatened unlawful violence of the type that I have said; that there were three or more persons in total behaving in that way; . . . So also before you could convict [N] of violent disorder you would have to be sure that at least three persons were present together using or threatening unlawful violence. I will come to self-defence in a moment.”
[9]On 28th July 2009 the jury convicted the appellant of violent disorder and on 18th September 2009 she was sentenced to a Community Punishment and Rehabilitation Order, involving 80 hours of Community Punishment and 18 months’ Community Rehabilitation. She now appeals against conviction by leave of the single judge.[10]The grounds of appeal are:(i) that the Judge should have withdrawn the count of violent disorder from the jury or should have directed a verdict of ‘Not guilty’ on that charge at the close of the prosecution’s case; and(ii) that the judge directed the jury wrongly in relation to the offence of violent disorder.[11]Although the grounds of appeal criticise the judge’s ruling on the submission of ‘No case’ as well as his directions to the jury, the only real question for decision in this case is whether, in order to be guilty of the offence of violent disorder, a person must deliberately act in combination with at least two other people present at the scene, or whether it is sufficient that at least three people be present, each separately using or threatening unlawful violence.[12]Mr. George submitted on behalf of the appellant that the words “present together” in section 2 of the Act carry with them the concept of a number of people acting together, if not in pursuit of a common aim, at least united by some more general purpose or intent so that it is possible to say, at least in a loose sense, that they are acting together. He submitted that the requirement was not satisfied in the present case because the appellant had been engaged in a purely personal struggle with PC Lathwood and had played no part in inciting or encouraging the actions of those who had gathered to watch.[13]The Public Order Act 1986 was passed in response to the recommendations in the Law Commission’s Report No. 123 published in 1983 and entitled Offences relating to Public Disorder. One of its purposes was to substitute for the common law offences of riot, rout, unlawful assembly and affray new statutory offences which were considered to be clearer in content and better adapted to modern needs. As a consequence the present statutory offences of riot, violent disorder and affray were enacted in sections 1-3 of the Act and the common law offences were abolished by section 9(1). It has been recognised more than once by this court that the Act is to be given its natural and ordinary meaning and should not be interpreted by reference to the common law offences which it abolished.[14]At the heart of each of these three statutory public order offences lies the use or threat of unlawful violence of a kind that would cause a person of reasonable firmness present at the scene to fear for his personal safety. In other words, the mischief to which these sections of the Act are directed is public disorder, that is, conduct of a violent or threatening kind that would cause ordinary members of the public going about their lawful business to fear for their safety if they happened to come upon it. The offences of riot, violent disorder and affray are carefully graduated, both by reference to the number of persons who must be present in order for the offence to be committed and by reference to the purposes for which violence is used or threatened. Thus, the offence of riot can be committed only when twelve or more persons who are present together use or threaten unlawful violence for a common purpose, whereas the offence of violent disorder can be committed when three persons are present together and affray by one person acting alone.[15]It is in this context that the terms of section 2 of the Act fall to be interpreted. The absence, in contrast to section 1, of any requirement that there be a common purpose among those using or threatening the use of violence, makes it clear that the offence which it creates is not confined to situations in which the individual members of the crowd are acting together to achieve a common aim, or even with a common motive. Thus, in paragraph 32.1.4.2 of the current (12th) edition of Smith & Hogan, Criminal Law one finds the following comment:
“There need be no common purpose. Each of the three or more persons may have a different purpose or no purpose.”
In our view that correctly reflects the natural meaning of the section.[16]Mr. George for the appellant submitted, however, that the use of the word “together” in the phrase “present together” requires there to be something more than mere physical proximity linking the three or more persons who are using or threatening violence. He found some difficulty in identifying the precise nature of that link, but accepted that it could fall short of what would be needed to establish the existence of a joint enterprise at common law. Some degree of conscious participation or co-operation with others is, he submitted, required, to render a person guilty of the offence, or at any rate some foresight that more widespread disorder of the kind envisaged by section 2 might result from his actions. If that were not so, a person who became embroiled in a fight in the street with one other person could find that he had committed the serious offence of violent disorder if a third person were to join in uninvited, or if two others decided to pick a separate fight close by. He submitted that Parliament cannot have intended that a person should be guilty of the offence under those circumstances unless he had at least foreseen the possible consequences of his actions. Mr. George also submitted that since the words “present together” admitted of two possible interpretations, the court should prefer that which was more favourable to the appellant.[17]Mr. Goudie for the Crown submitted that no link between those using or threatening violence is required, other than they be present together, in the sense of being in the same place at the same time. At one point in his argument he submitted that the requirement could be satisfied by a sufficient degree of common intention, but on closer examination it seemed to us that what he had in mind added little to the requirement for a sufficient degree of physical proximity. He submitted that the purpose of the section is to suppress public disorder of a kind that is liable to cause fear to ordinary citizens by penalising anyone actively involved in it.[18]In order properly to understand the phrase “present together” it is necessary to have regard to the mischief at which the section was aimed. Sections 1, 2 and 3 of the Act are all aimed at public disorder of a kind that would cause ordinary people at the scene to fear for their personal safety. That will depend primarily on the nature of the disorder, the numbers involved and the purpose to which any violence or threat of violence is directed. Section 2 is not concerned with the origins of the violence or the purpose of those who take part in it and their individual intentions, other than the intention to use or threaten violence, are for those purposes immaterial. What is likely to cause people present at the scene to fear for their personal safety is the apprehension that they may be caught up in the disturbance in one way or another. The purpose of the section is to prevent public disorder of that kind.[19]That being so, we think that the expression “present together” means no more than being in the same place at the same time. Three or more people using or threatening violence in the same place at the same time, whether for the same purpose or different purposes, are capable of creating a daunting prospect for those who may encounter them simply by reason of the fact that they represent a breakdown of law and order which has unpredictable consequences. We are unable to accept that the phrase requires any degree of co-operation between those who are using or threatening violence; all that is required is that they be present in the same place at the same time. The section is concerned with public disorder and is deliberately worded in a way that is apt to apply to anyone who uses or threatens violence of the requisite nature in a particular context, namely, in a public place where others are engaged in the same activity. We think that the requirement that the conduct of the participants taken together should be such as to cause members of the public to fear for their safety was included in order to direct attention to the overall effect of what may otherwise be unrelated acts or threats of violence.[20]In our view that is the natural meaning of the words used in sections 1 and 2 of the Act and we are fortified in that conclusion by certain passages in the Law Commission’s report. In using those words section 2 of the Act follows the wording of the draft bill annexed to the report and the explanation for their inclusion may therefore fairly be accepted as a guide to the intended scope of the section as enacted. In paragraph 5.6 of the report the Law Commission explained that it adhered to its original view, following consultation, that there was a need to penalise two broad situations formerly covered by the common law offence of unlawful assembly, namely, conduct by a number of individuals which gives rise to a fear of a breach of the peace and conduct by such a number of persons which is intended to provoke others to violence. That distinction was reflected in the proposals to create new offences of violent disorder and conduct intended to or likely to cause fear or provoke violence, which are now reflected in sections 2 and 4 of the Act. It was the intention of the Law Commission that the proposed offence of violent disorder should penalise an individual who, in the company of two or more others, uses actual violence. The offence was said to be intended to deal with persons participating in public disorder whose conduct has gone beyond the stage of mere threats of violence (see paragraph 5.24)[21]Paragraph 5.29 of the report includes the following passage:
“It will be noted that the offence denotes the element of “combination” or numbers which is common to both offences which replace unlawful assembly by the requirement that there be three or more persons present together. We have referred to the fundamental importance of this element and the number has been set at three, which accords with the common law requirement in regard to both unlawful assembly and riot. It will be noted that, in referring to the requisite minimum of three persons “present together”, there is no element of common purpose; nor is it necessary that the three should be acting in concert in the sense that they are doing the same acts or doing acts directed at the same object. It is, necessary that the conduct, taken together, should be such as would cause fear to a person of reasonable firmness present at the scene.”
And in paragraph 7.3, which deals with aiding and abetting offences under the Act, the circumstances required for an offence of violent disorder are said to be “the presence of three or more persons using or threatening violence”.[22]In the present case it is not in dispute that while the appellant was struggling with PC Lathwood a crowd gathered and that various members of the crowd used or threatened violence. There was evidence that the appellant had continued violently to resist arrest and by their verdict the jury found that her actions were unlawful. There was also evidence that the appellant’s struggle was taken up and assisted by some of those who had gathered round. The jury must have been satisfied that at least two of them had also used or threatened unlawful violence. On one view of the evidence, therefore, it was a classic case of a struggle between a police officer and a person unlawfully resisting arrest which developed into more general violence; the very kind of public disturbance at which the section is aimed.[23]In the course of argument various hypothetical situations were canvassed in order to test the meaning of the phrase “present together”. In our view it is intended to denote nothing more than being present in the same place. It is unnecessary in this case to attempt to define it with any greater precision, since it was undoubtedly open to the jury on the evidence before them to find that there was a time when the appellant and at least two members of the crowd were in the same place using or threatening violence. In any event, however, we think that it would be undesirable to attempt to do so. The phrase consists of ordinary words which must be given their ordinary meaning. If a question arises whether the defendant and others who are said to have used or threatened violence were present together (which we think is unlikely to arise in many cases) the jury should be told that the question is one of fact and that they should give the words their ordinary meaning: see Brutus v Cozens [1973] A.C. 854.[24]In our view the judge was therefore right to reject the submission of ‘No case’ for the reasons he gave. In his summing up he directed the jury in terms that were consistent with his earlier ruling, telling them that they had to be sure that the appellant had used or threatened unlawful violence and that there were three or more persons in total behaving in that way. In our view that direction was correct and nothing further was required by way of explanation of the phrase “present together”.[25]The appeal is therefore dismissed.

Cited in 1 later judgment