R v Iona Summerson & Anor [2026] EWCA Crim 625

[2026] EWCA Crim 625Case No 202404138 B4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
HER HONOUR JUDGE DUNCAN
T20227171
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/05/2026
Before
LORD JUSTICE HOLGATEMR JUSTICE WALLHIS HONOUR JUDGE TIMOTHY SPENCER KC, THE RECORDER OF LEICESTER(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
REXRespondent(1) IONA SUMMERSONAppellants(2) HARVEY BROWNAppellant
Martin Hooper (instructed by Crown Prosecution Service) for RespondentMargo Munro Kerr (instructed by Kellys) for Appellant (1)Robbie Stern (instructed by Kellys) for Appellant (2)Hearing Hearing date : 23 April 2026
Approved JudgmentThis judgment was handed down remotely at 10am on 19 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]On 25 October 2024 in the Crown Court at Isleworth before Her Honour Judge Hannah Duncan, Iona Summerson (then aged 33) was convicted of conspiracy to commit criminal damage (Count 1) and affray contrary to s.3(1) Public Order Act 1986 (Count 2). She was acquitted of assault with intent to resist arrest (Count 3). On 31 January 2025 she was sentenced to an 18 month community order. On 25 October 2024 before the same Court, Harvey Brown (then aged 22), was convicted of affray (Count 2). He was acquitted of Counts 1 and 3. On 31 January 2025, he was sentenced to a 12 month community order. The appellants appeal against conviction by leave of the single judge. With no disrespect intended we will refer to the various people accused or convicted on this indictment, including the appellants by their surnames.[2]There were a number of co-accused. Some were acquitted, others were convicted. Mx Charlie Turner was convicted on Count 1 and sentenced to a 12 month community order. Ms Sanna Masood pleaded guilty to Counts 1 and 2 and was sentenced to a 2 year community order.[3]Jones Lang LaSalle (“JLL”) was concerned with an office block at 1 Curzon Street, London. JLL owned and leased properties on behalf of their clients. It provided services to a company called Elbit Systems Ltd (“Elbit”) which manufactured drone technology and other defence equipment. On 27 September 2021, a group of people, coordinated by Palestine Action, protested at the Curzon Street address in the belief that Elbit’s equipment was sold to, and used by, the Israelk Defence Forces.[4]The prosecution’s case was that the protest was organised and pre-planned. Having initially met at Berkeley Square, moved on to Curzon Street, bringing with them extinguishers containing paint and smoke flares. The protest spilt into criminality by causing damage to the office building, assaulting security staff and behaving in a way which would have caused those present at the scene to fear for their safety.[5]After the group had assembled in Berkley Square, they made their way to 1, Curzon Street. At about 8.40am, Summerson entered the office’s reception lobby wearing a face mask. The remaining members of the group also attempted to enter but security had blocked the door.[6]The security manager, Mr Antonio Da Silva, approached Summerson, asking why she was there. She stated that she wanted to see the CEO of JLL. Da Silva asked her to leave given his awareness of Palestine Action. He radioed, “Bulldog at reception”, which was code for seeking assistance. As she refused to go, she was physically escorted from the building and joined the rest of the group outside. The group tried to push through the revolving doors chanting, “Evict Elbit”.[7]Masood and Turner arrived, placed a black bag on the ground and removed two fire extinguishers containing red paint. They sprayed the paint on the building’s façade. This was the subject of the conspiracy in count 1. The paint from Masood’s extinguisher went onto Da Silva’s glasses and into his left eye, but caused no specific damage. He said that he attempted a citizen’s arrest of Masood. As he tried to place her in an arm lock, they fell to the floor as it was wet. He said that the group at the door began kicking and punching him, causing a few bruises, and they ripped his clothing.[8]Summerson took a flare from the bag she was carrying which she then activated to emit smoke. Brown unscrewed a flare which emitted red smoke. Da Silva said that the flares were near his face for about two minutes and he struggled to breathe. He could taste sulphur for seven days after the incident. His lanyard containing the master fob for the building and his keys were ripped from his neck during the incident. Da Silva believed five of the group had flares. Overcome by smoke, his grip loosened upon Masood and she, and the others, escaped. The police were called. The use of the flares was the subject of the affray alleged in count 2.[9]Brown was arrested on 23 February 2022. When his room was searched Da Silva’s security fob and keys were found in his wardrobe. He answered no comment to all questions asked in interview.[10]Summerson was arrested on 20 March 2022. A backpack was seized which contained a face mask identical to the one worn by the person who first entered the office building. She answered no comment to all questions asked in interview.[11]To prove its case, the prosecution relied on:(1) Evidence from Da Silva;(2) Evidence from Neil Hurren, the building’s security officer;(3) Evidence from Graham Saxby, the building’s manager;(4) DC James Harold, the officer in the case;(5) Video and CCTV footage of the incident.[12]The defence case was that there was no conspiracy. The accused either did not know each other or had little or no contact with each other prior to the protest. Although they met in Berkeley Square, they arrived in separate groups or individually but were only there for a few minutes. There had been no discussion about the use of paint. The plan was simply to go to the building and ask for a meeting with the CEO of JLL. They walked the short distance to the office but were not altogether.[13]In respect of Count 2, they raised self-defence, believing that Da Silva was assaulting Masood, or was using unreasonable force to detain Masood. There was no intention to use unlawful violence towards Da Silva or anyone else.[14]Brown gave evidence that he had been involved in protests since 2018 and came across Palestine Action online. He was invited to attend a small action against the landlords of Elbit. A week before, he was told to meet at 8am in Berkeley Square. He was not informed of the other participants, he was not told to bring anything and he was not told about the spraying of paint. He participated in the protest with the specific intention not to break any laws as he did not wish to risk his education by being arrested.[15]Brown denied entering into an agreement to cause damage or intending to use unlawful violence to Da Silva or anyone. His presence at the revolving doors had not been a distraction for Turner and Masood before they sprayed the building. He was unaware they were coming and was taken by surprise.[16]He found out the name “JLL” on the day. The organisation of the protest seemed confused and there was a smaller number of participants than he had expected. The plan had been to go to the reception of the building and request a meeting with JLL’s CEO. They were to occupy the reception area of the building until a meeting was achieved or the police called, at which stage he would have left. When they could not enter the building to occupy the reception, they decided to stage a protest by occupying the area in front of the revolving doors. The protest included chanting and drumming on the glass of the doors.[17]He did not previously know Summerson. He believed that she had provided him with the flare but could not remember. He thought use of the flares during the protest would be visually striking for the photographers present. He was not aware of any bags being carried by Turner or Masood. When the paint was sprayed, there was surprise and general confusion. The protest had not gone the way he had expected.[18]Brown did not hear Da Silva state that he was performing a citizen’s arrest of Masood but he did hear Masood’s screams and thought she was at high risk. As he saw Da Silva run towards Masood, he pulled the flare instinctively. He wanted to stop Da Silva assaulting Masood. As the flare impeded his ability to intervene, he held it behind himself. He accepted pulling Da Silva by his left shoulder away from Masood which was enough to get Da Silva off her. He did not see any kicking or punching.[19]Da Silva’s lanyard and fob must have come off when he was being separated from Masood. Brown realised it was in his hand as he walked away from the incident and he placed the items in his pocket, not thinking anything of it. When he returned to his living accommodation, he threw it into his wardrobe and did not think about it again until the police found it.[20]One of the co-accused Mx Finton Owens gave evidence that they had known Summerson for a few months before 27 September 2021 through Palestine Action. Owens was not aware that Summerson would be present at the protest on 27 September until they saw her in Berkeley Square that day. Owens did not see Summerson, or anyone else, holding a flare in Da Silva’s face.[21]Summerson gave evidence that she had heard of Palestine Action in May 2021. One of its aims was to shut down Elbit. She knew Mx Owens and Masood before the protest. She became involved after being contacted by someone in Palestine Action. She was told that the protest was going to be at JLL’s offices in Mayfair and low key. They discussed JLL’s relationship with Elbit. There may have been mention of talking to the CEO following an occupation. There had been no mention of paint or damage. A few days before, she was told to meet at Berkeley Square in the morning and to bring a Palestinian flag, banners and flares. She did not think that paint would be part of the protest.[22]She arrived at Berkeley Square at 8.15am. People talked to each other but she had no conversation with Masood and Turner about what they were going to do during the protest. There was no discussion about using paint or causing damage. There was a conversation about going to the building and asking to speak with the CEO. She had found out his name beforehand. The plan was to sit in the lobby, chant and make some noise.[23]Summerson said that there was no discussion as to who would enter the building first. It just happened to be her. She was confused when Da Silva said that JLL was not based in the building. As she looked at the list of companies behind the reception desk, Da Silva gave a code into his walkie talkie and attempted to physically move her. When he placed his hands on her back, she was completely passive and left the building. She did not expect him to be so aggressive. She joined the others that were present at that point, banged on the glass and chanted “Evict Elbit”. She thought the protest was “a bit lame” and that it was disorganised.[24]She removed a flare from her bag which she only began to ignite when the photographer arrived at the scene. She wanted it to go off away from people and pointed it in that direction. After this, Da Silva ran towards Masood. She did not hear him say he was making a citizen’s arrest. She followed Owens who went to intervene. After activating the flare, she held it in her right hand. She was sure she did not touch Da Silva. She did not hold the flare close to his face, nor did anyone else. She did not hold the flare so as to make the situation unpleasant for him, but to have control over it and keep it away from others. She did not see anyone kick or punch. She helped Masood off the ground who subsequently pulled away and ran off. During this, Summerson’s arm may have brushed Da Silva which was unintentional.[25]We have had the benefit of a combined skeleton argument prepared by Ms Munro Kerr on behalf of Summerson and Mr Stern on behalf of Brown. This replaces their earlier Advices. We also have the benefit of a Respondent’s Notice and skeleton in reply prepared by Mr Hooper on behalf of the prosecution. Counsel appeared at the trial as well as this appeal. We are grateful to all of them for their helpful written and oral submissions.

A summary of the submissions

[26]The appellants submitted that the jury was not directed as to the mental element of affray (count 2) by a discrete legal directionin accordance with R v Mann [2002] EWCA Crim 3045. Further, the mental element was not included in the route to verdict (see R v Stevens [2023] EWCA Crim 1182). Therefore, the appellants’ convictions on count 2 were unsafe.[27]Counsel accepted responsibility for not raising this issue during the trial and for not referring the judge to Mann. The drafting of the legal directions for all three counts had been a complex process. The omission was wholly inadvertent and was an oversight by all. However, the failure of counsel to raise an issue or legal authority was not dispositive of the safety of a conviction. The court would need to consider whether any material misdirection to the jury rendered the convictions unsafe (R v Cunningham [2025] EWCA Crim 662).[28]The route to verdict did not direct the jury to answer any question on mens rea, nor one specifically formulated on the basis of s.6 of the 1986 Act (see below). But the prosecution pointed to the fact that the judge did include the word “deliberately” within para. 43 of the written legal directions. This drew the jury’s attention to the necessary state of mind. It was submitted that in the circumstances of this case, the absence of a question directed to mens rea within the route to verdict was not fatal to the safety of the convictions.[29]It was the prosecution’s case that the appellants deliberately unscrewed flares and held them for a prolonged period near the security guard. Mann should be distinguished.

Discussion and conclusions

[30]Section 3 of the Public Order Act 1986 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. …”
[31]By s.8 “violence” means any “violent conduct” (emphasis added). But:
“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).”
[32]It is clear from s.3, read with the definition of “violence” in s.8, that s.3(1) focuses on conduct. That conduct must involve the “use of violence”, or the threat of violence, towards another person.[33]So, in I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285 the House of Lords held that the carrying by a group of youths of primed petrol bombs, none of which were brandished or had yet been lit, was conduct clearly capable of amounting to a threat of unlawful violence, whether characterised “as a show of force or simply an obviously threatening spectacle”. Whether it did constitute a threat of violence would be a matter for the tribunal of fact to determine in the circumstances of the case. However, “mere possession of a weapon, without threatening circumstances… is not enough to constitute a threat of unlawful violence (see [10]-[16]).[34]There are two additional requirements for conduct to fall within s.3(1). The violence must be used or threatened towards another person and it must be violence of a quality which would cause a notional bystander of reasonable firmness to fear for their personal safety (s.3(4) and I v DPP at [17]-[26]).[35]Thus, s.3(1) only deals with the actus reus of the offence of affray and not the mental element.[36]Section 6 defines the mens rea for a number of public order offences under the 1986 Act. Section 6(2) provides:
“A person is guilty of violent disorder or affray only if he intends to use or threatens violence or is aware that his conduct may be violent or threatens violence.”
Thus a person is only guilty of affray if, in addition to proving that he committed the actus reus, the prosecution proves that either (1) he intended to use or threaten violence or (2) he was aware “that his conduct may be violent or threatens violence”.[37]In I v DPP the House of Lords drew upon the Law Commission’s Report No. 123 “Offences relating to public order” which led to the passing of the 1986 Act. The Commission recognised that since the essence of most offences of affray is fighting, and “it is almost impossible to conceive of a situation in which a person is fighting by accident”, the mental element generally had little practical importance (paras. 3.41 and 3.50). Nevertheless, the Commission recommended that the new statutory offence of affray should include an express mental element, which should accord with the mens rea for common law and statutory offences against the person (para. 3.50). They also recommended the inclusion of the second limb of s.6(2) as a form of recklessness (para.3.52).[38]A fundamental point in the Law Commission’s recommendations is that what became s.3 of the 1986 Act simply describes the conduct or actus reus of affray, whereas the necessary mens rea is dealt with in s.6(2). The Commission’s recommendation that the threat of violence should be added to the use of violence in what became s.3(1) formed part of the definition of prohibited acts or conduct (see e.g. paras. 3.16 to 3.17).[39]In Mann the prosecution’s case was that the appellant had hit her former partner over the head several times with a phone and then followed him out of the house with a knife in her pockets. She produced the knife and said she was going to “slice him” making a gesture from ear to ear. When he ran off she followed, waving the knife as if to cut his throat. The appellant gave a different account of the altercation: she had been at work in the kitchen using a knife and had taken it into the street inadvertently when she thought her partner had left the house with her son. She denied making any physical or verbal threats.[40]The judge left the case to the jury on the basis that there was a simple conflict of evidence between the prosecution case that the appellant had brandished the knife while making violent threats to the complainant and the appellant’s denial of that allegation. There was no legal direction on the mental element of affray.[41]The prosecution contended that no such direction was necessary on the facts of this case. The issue was one of credibility. It was submitted that if the jury accepted the complainant’s evidence that the appellant had made threats to kill him while brandishing a knife, there was no scope for denying, at the very least, that the appellant was aware that that conduct might be violent or threatens violence, whether she intended that to be the case or not [9]. In other words, the prosecution was contending that on the facts in Mann any reasonable jury directed in accordance with s.6(2) of the 1986 Act could only have concluded that the second limb of that provision was made out.[42]The appeal against conviction was allowed. The court held that it was bound to start with a presumption that a summing up which does not contain any direction as to the mental element necessary to commit an offence is fatally flawed [10]. The Court then said:
“11. Nevertheless, does the omission to give the direction in this case make the conviction unsafe? We think it does. The jury must at least have accepted some parts of the complainant's evidence to the effect that the appellant was making threats and brandishing the knife in order to convict because, without those essential factual matters the actus reus of the offence would not have been made out. But it does not follow inexorably that, those facts having been established, the appellant must be taken to have intended to use or threaten violence, or that she was aware that her conduct was violent or threatened violence. This was a domestic dispute, albeit in the street, in which it is possible that a distraught person will make empty threats of violence accompanied by empty gestures. Here the defence to count 4 was that the appellant had the knife inadvertently and/or did not intend to cause injury with it. The jury accepted the defence although one cannot say on what basis. But this does suggest that, if they had been properly directed as to intent on the affray count, they might have reached a different result.”
[43]The decision in Mann was carefully expressed. The court did not decide that a failure to direct the jury on the mental element of affray renders any conviction for that offence unsafe. It was not considering, for example, a typical example of affray based on fighting. Instead, the court’s reasoning was confined to the circumstances of that case. The court decided that although the jury must have been sure that the actus reus had been committed by, at the very least, the appellant having brandished the knife while making threats, it did not inevitably follow that she must be taken to have had the necessary mens rea. It was possible that the appellant had been making empty threats and gestures while distraught because of a domestic dispute. The jury’s acquittal on an allegation of possession of an offensive weapon could have been because they accepted her case that she had taken the knife with her into the street inadvertently or did not intend to cause injury with it. It was for those reasons that the conviction for affray in Mann was held to be unsafe.[44]By contrast, the factual issues in many cases of affray by fighting may essentially be to do with the conduct of a defendant. It may be obvious from the circumstances of the case that if the violence is proven there can be no real dispute that the offender in question had the necessary mens rea. Although a legal direction about the mental element of affray should generally be given, a failure to do so in a case of that kind, without more, is unlikely to render a conviction for the offence unsafe.[45]Mr. Hooper confirmed that in this case the prosecution relied upon the first limb of the definition of mens rea in s.6(2), and not the second limb. It contended that the appellants had intended to use or to threaten violence. He said that this allegation related to what the appellant did with the smoke flares.[46]In his evidence Da Silva described what happened after the paint spraying incident. He thought that 5 people let off flares. He was exposed to the flares held under his face for about 2 minutes and he was struggling to breathe. He could taste sulphur for about 7 days after the incident. There were kicks and punches and one person hit him with a Palestinian flag (summing up pp.28-30). Summerson held her flare directly in his face. He said that that could not be seen on the CCTV footage because of the smoke (pp. 31-32).[47]In para.11 of her defence statement Summerson denied holding a lit flare close to Da Silva’s face or using it in a dangerous manner. Her sole purpose was to draw attention to the protest and to enhance the interest of the photographs and videos that were being made of the incident. That reference to purpose went to the issue of her intention.[48]Summerson gave evidence to that effect in chief (transcript pp. 8-9). She said that she got the flares out of her bag before the arrival of a professional photographer who was to take the main photographs, but she lit her flare because she saw the photographer arrive. This was before Da Silva started to run at Masood (pp. 18-19). Referring to the CCTV footage, Summerson said that she held the flare so that the smoke would go away from people. She did not hold the flare close to Da Silva’s face or so as to make the environment more unpleasant for him (pp. 20-22).[49]In cross-examination Summerson said that the flare was about 1m away from da Silva’s head. She denied deliberately aiming the flare so that the smoke would go into Mr Da Silva’s face. She lifted it up so that it was above people’s heads. The smoke went above Da Silva’s head (pp. 37-38 and re-examination at para.41).[50]In para.15 of his defence statement, Brown said that he did not hold a smoke flare close to the security guard. He had the flare in his possession for a short time and deliberately held it at a safe distance from those involved in the incident.[51]Brown gave evidence to that effect in chief. He obtained a flare from Summerson. The photographer was there and having the flares outside the building was meant to be visually striking, a visual effect just as at a concert (transcript pp. 22-23). Brown saw Da Silva run aggressively towards Masood, she was screaming and he was concerned for her safety. There was confusion. Instinctively he activated the flare and put it behind his back. The flare was not hot and Brown had no difficulty in breathing. He tried to join in with others to pull Da Silva off Masood. While he was doing that he held the flare behind him as shown on the CCTV (pp.24-27). In cross-examination he said that Summerson gave him the flare when the photographers were present as that would provide good photographs outdoors, with the chanting, for the media (pp.38-9). Brown disagreed that the CCTV footage showed at one point that he held the flare in Da Silva’s face. He was 1 metre away from Da Silva and the flare was “over there” (p.41).[52]The judge provided the jury with written legal directions and a route to verdict. Those documents had been the subject of discussion with counsel.[53]The written directions dealt with the law on affray, in part at paras.42 to 48:
“42. The offence of affray relates to the use or threat of violence to another person or people. It does not relate to property. There are several ingredients and you must be sure of all of them. 43. First that the defendant deliberately used or threatened violence to another person. 44. Second that the violence (used or threatened) was unlawful. 45. Third that the conduct of those who used or threatened violence, when taken together (so not looked at individually), would cause a person of reasonable firmness if present at the scene to fear for their own safety. 46. Violence means any violent conduct which is directed at a person, such as throwing something towards a person, pushing or grabbing someone. Words alone are not enough – there must be some sort of action. ‘Threatened’ has its everyday meaning – for example punching someone in the face is obviously the use of violence, and if someone were to hold their fist up to someone’s face without actually touching them you may think that is a good example of a ‘threat’ of violence. No one is saying that is what happened in this case – this is just an example. Whether their conduct amount to violence or the threat of violence is a question of fact for you to decide. 47. You must also be sure that the violence would cause a person of reasonable firmness who was there to fear for their own safety. The prosecution do not need to prove that such a person was actually there or that they were in fact in fear of their own safety. In deciding this look at what happened and take their actions as a whole into account. You may take into account the reactions of the other people to what was happening. For example (this is not based on this case) if someone wandered past an incident, paused and shrugged you might think that the conduct of the defendants was not causing any fear. On the other hand, if someone walked past an incident, then backed off looking alarmed and ran off that would be good evidence that they were in fear. Remember that the test is whether the hypothetical bystander ‘of reasonable firmness’ would fear their safety. What the situation was on this particular day is entirely up to you. 48. If you are sure that the individual defendant you are considering did use or threaten violence, you do not need to consider each person’s actions separately when you decide if a person present would to fear for their safety – when deciding this requirement only you must look at the conduct of the entire group taken as a whole.”
[54]At paras.49 to 55 the judge gave legal directions on whether any violence used or threatened had been unlawful, in the context of defence of another person(a) from assault and(b) unreasonable force for carrying out an arrest.[55]The judge did not give a separate direction on the mens rea for affray in the written legal directions, But the prosecution relies on the inclusion of the word “deliberately” in the direction on the first ingredient of the offence, dealt with at para.43.[56]The route to verdict directed the jury to answer the following five questions in relation to the affray alleged under count 2:
“1. Are you sure that the defendant used or threatened violence? If you are not sure – NOT GUILTY If you are sure then go to Q2. 2. Are you sure that the defendant believed that Ms Masood was under arrest? Yes - (So you are sure that the defendant knew or believed that this was an arrest and not just as assault) - Go to Q3. No – Go straight to Q4. 3. Are you sure that the defendant did not honestly believe that the force used by Da Silva in arresting Ms Masood was unreasonable? If yes – Self defence does not apply. Go to Q5 If no – so the defendant may have believed that the force used by Da Silva may have been unreasonable – go to Q4. Note – if the defendant may have believed that Sanna Masood was being attacked rather than being arrested then it does not matter whether the force Da Silva used was reasonable or not – they can rely on self defence – hence straight to Q4. If you are sure that the D knew or believed that Sanna Masood was being arrested they can only rely on self defence if they believed Da Silva was using more than reasonable force – hence Qs 2 and 3. 4. Are you sure that the violence used or threatened by the defendant was more than was reasonable? If no – NOT GUILTY If yes – Go to Q5. 5. Are you sure that a person of reasonable firmness, if present at the scene, taking the conduct of the group as a whole, would have feared for his personal safety? If you are not sure – NOT GUILTY. If you are sure- GUILTY.”
If you are not sure – NOT GUILTY If yes – Self defence does not apply. Go to Q5 If no – NOT GUILTY If you are sure- GUILTY.”

If no – NOT GUILTY

[57]Like the legal directions, the route to verdict did not address separately the mental element of affray. But unlike para.43 of the legal directions, question 1 of the section in the route to verdict dealing with count 2 omitted the word “deliberately”.[58]In her summing up the judge said the following about the route to verdict:(1) It “set out a series of questions that you must follow in order to reach the right verdict for each defendant on each count” (p.5);(2) The jury were told to go through the questions “very slowly and carefully” and to “make sure that you are taking into account the exact words that are used here” (p.13);(3) The jury were told that the route to verdict was “… your map to reaching the right verdict based on what you - your conclusions on the evidence, and what you think happened” (p.6);(4) On count 2 the jury were told that the route to verdict “sets the questions out in order in which you should approach them… you have got to go through this really carefully and slowly” (p.17).[59]During their deliberations the jury asked a question about the definition of conspiracy to commit criminal damage (count 1). The judge addressed the question directly by answering “no” and then asked the jury to refer back to the section in the legal directions on conspiracy (p.60). She then said this:
“And, if you go through the route to verdict question by question, that will take you through it, and ensure that you reach the correct verdict on the basis of evidence that you find.”
[60]Judges often make statements of this kind. Routes to verdict are designed to identify all of the questions which the jury is required to answer in order to apply the judge’s directions on the law to its factual conclusions correctly. Thus, section 4 para.7 of the Crown Court Compendium states:
“It is of crucial importance that the questions in the RTV encompass all the contestable elements of the alleged offence.”
[61]Thus, the route to verdict gave to the jury the essential structure for the issues that needed to be decided in this case and the sequence in which those matters should be determined. It would have been reasonable for a juror to take the view that if an issue did not appear in the route to verdict then they did not have to decide it.[62]At no point did the jury ask the judge why the word “deliberately” had been included in para.43 of the legal directions but omitted from the treatment of count 2 in the route to verdict. That is hardly surprising. During the trial the lawyers involved did not notice this difference. The legal directions gave no explanation as to why the single word “deliberately” had been used, in contrast to the explanations provided of other ingredients of the offence of affray, notably violence and the use or threat of violence. A juror would have been entitled to assume that the word “deliberately” had no real significance.[63]This is reinforced by the fact that(a) separate directions were given to the jury on the necessary mens rea for counts 1 and 3 and(b) separate questions were included in the route to verdict requiring the jury to be sure about the mental element for each of those counts. The inescapable conclusion is that the jury was not told that they had to consider and determine the issue of intention in relation to count 2. In our judgment the inclusion of the single word “deliberately” in para.43 of the legal directions cannot be taken as a legally adequate direction on intention for the purposes of count 2 (see also R v Stevens [2023] EWCA Crim 1182).[64]Very properly, all counsel have apologised for not having spotted this flaw in the legal directions and the route to verdict. They say, and we accept, that this error was overlooked in a situation where there were other complex drafting issues to be addressed. The error was inadvertent. We are satisfied that no party omitted to draw attention to the mens rea element of count 2 for tactical reasons.[65]The remaining question is whether the absence of a legal direction on the mental element of affray renders the conviction of either appellant on count 2 unsafe, that being the sole ground on which an appeal may be allowed.[66]Mr. Hooper submits that the jury must have answered question 1 in the route to verdict in the affirmative. That is, they must have been sure that both Brown and Summerson used or threatened violence. Going back to Mann at [10]-[11] he then accepted, correctly in our view, that this Court needs to be satisfied that it follows inevitably, or inexorably, from that finding that the mental element of affray was also proven to the criminal standard.[67]In other words, the test is whether, if a legal direction had been given on mens rea, any reasonable or rational jury in this case could only have answered the corresponding question in the route to verdict by concluding that the relevant defendant had intended to use or threaten violence. Unless we can be satisfied that that test is met in relation to an appellant, his or her conviction must be quashed.[68]In paras. 4 to 5 of his skeleton argument Mr Hooper submitted that Mann should be distinguished because the appellant’s defence in that case was that she had the knife with her through inadvertence, whereas here the suggestion of inadvertence in relation to the flares “was wholly implausible and would not have troubled the jury”.[69]With respect, that submission does not help us to resolve these appeals. The legal issue in Mann and in these appeals is essentially the same. Is the conviction safe, notwithstanding the absence of a legal direction on the mental element of affray, because it inevitably follows from the jury’s conclusion that the appellant committed the actus reus of affray that he or she must be treated as having had the mens rea for that offence? Mann illustrates that the answer to that question will be affected by the nature of the conduct about which the jury must have been sure. The factual issues in Mann were not limited to inadvertence (see [43] above) and, in any event, neither of the appellants in this case claimed that their use of the flares was inadvertent.[70]But Mr Hooper went on to submit correctly that a central issue to be determined by the jury was whether the flares were let off close to Da Silva’s face for a couple of minutes or whether they were used in the manner described by the appellants, that is to say pointing away, and at a safe distance, from the security manager and other persons.[71]In our judgment the jury’s affirmative answer to question 1 means that they must have accepted Da Silva’s evidence and rejected each appellant’s description of how they used their flare. Those descriptions could not have amounted to the use or threat of violence towards another person. The use of the flares in the manner described by Da Silva inevitably involved an intention by each appellant to use or threaten violence. That usage was wholly inconsistent with the claim of each appellant that their purpose was limited to providing images with media interest for a photographer to capture.[72]In the circumstances of this case, the failure of the judge to give a direction on the mental element of affray did not render either conviction under count 2 unsafe. We are satisfied that each conviction was safe.[73]Accordingly, the appeals against conviction must be dismissed.