Affray directions: omission of s.6(2) mens rea is not fatal where the jury’s actus reus finding inexorably proves intent

1) Introduction

In Summerson & Anor v Rex [2026] EWCA Crim 625, the Court of Appeal (Criminal Division) (Holgate LJ, Wall J, and HHJ Timothy Spencer KC) considered whether convictions for affray were unsafe because the trial judge did not give a discrete direction on the mens rea required by section 6(2) of the Public Order Act 1986, and the route to verdict contained no question requiring the jury to decide intent (or awareness) for affray.

The case arose from a coordinated protest at a commercial office building associated (via services) with a defence company. The prosecution alleged that smoke flares were deliberately used in close proximity to a security manager’s face for a prolonged period, contributing to a violent confrontation. The appellants maintained that flares were used for visual effect (e.g., for photographers) and held at a safe distance, and that any force was defensive (to protect another protester).

The appeal turned on a single legal issue: whether a failure to direct the jury on affray’s mental element rendered the affray convictions unsafe, notwithstanding that the written directions contained the word “deliberately” when describing one ingredient of affray.

2) Summary of the judgment

  • The Court held that the jury were not properly directed on the mental element of affray: the route to verdict omitted mens rea and the single word “deliberately” in written directions was not an adequate legal direction on intention for affray.
  • Nevertheless, the affray convictions were safe on the facts. By answering the route-to-verdict question that the appellants “used or threatened violence”, the jury must have accepted the prosecution evidence about how the flares were used (close to the security manager’s face for a sustained period) and rejected the appellants’ “safe distance/visual effect” account.
  • On that factual basis, the Court concluded it followed inevitably that each appellant intended to use or threaten violence (the prosecution relied on the first limb of section 6(2)). The omission therefore did not make the convictions unsafe, and the appeals were dismissed.

3) Analysis

A. Statutory framework: why s.3 is not enough

The Court emphasised a structural point about the Public Order Act 1986:

  • Section 3 defines the actus reus of affray: using or threatening unlawful violence towards another, with conduct such as would cause a hypothetical bystander of reasonable firmness to fear for personal safety.
  • Section 6(2) supplies the mens rea for affray: guilt arises only if the defendant intends to use or threaten violence, or is aware that their conduct may be violent or threaten violence.

The Court anchored this in the legislative history referenced in the judgment: Law Commission Report No. 123 “Offences relating to public order”, which treated section 3 as describing prohibited conduct, and section 6 as expressly supplying the fault element—often of limited practical importance in “fighting” cases, but still a necessary legal ingredient.

B. The directions problem: “deliberately” and a defective route to verdict

The written directions included: “First that the defendant deliberately used or threatened violence…”. However, the route to verdict asked only: “Are you sure that the defendant used or threatened violence?”, omitting “deliberately” and omitting any express section 6(2) question.

Two features made the omission significant:

  1. The judge repeatedly framed the route to verdict as the jury’s “map” and instructed jurors to follow it carefully, taking its wording seriously. The Court accepted it would be reasonable for a juror to think that if an issue did not appear in the route, it need not be decided.
  2. The jury had been given separate mens rea directions (and corresponding route-to-verdict questions) for other counts—reinforcing that mens rea would normally be explicitly identified when legally required.

The Court therefore held that the jury were not told they had to determine intention for count 2 and that “deliberately” in the written directions was not, without more, a legally adequate direction on intention—expressly citing R v Stevens [2023] EWCA Crim 1182.

C. Precedents cited and how they shaped the outcome

(1) R v Mann [2002] EWCA Crim 3045: omission of mens rea is presumptively fatal, unless “inexorable”

Mann was the central authority on misdirection. The Court of Appeal in Mann stated it was “bound to start” from the presumption that a summing up that omits the mental element is “fatally flawed”, but then asked whether the conviction was unsafe in that case. It held the conviction unsafe because it did not follow inexorably from the jury’s acceptance of some prosecution evidence on conduct that the defendant had the requisite intention/awareness; an “empty threats” scenario was possible, and an acquittal on another count suggested the jury might have treated intention as contestable if properly directed.

In Summerson & Anor, the Court treated Mann as establishing the correct test for safety: where mens rea has not been properly left, the conviction can stand only if, on the factual findings necessarily implicit in the verdict, any reasonable jury properly directed could only have found the requisite mens rea.

(2) R v Stevens [2023] EWCA Crim 1182: route-to-verdict omissions can be decisive

The Court used Stevens to reinforce a practical point: a route to verdict must capture all “contestable elements”. Here, even if “deliberately” appeared in written directions, the route to verdict omitted the mens rea question and was repeatedly emphasised to the jury as the decision-making tool. That combination meant the mental element was not truly left to the jury.

(3) R v  Cunningham [2025] EWCA Crim 662: counsel’s failure to spot the point is not determinative

The appellants accepted trial counsel did not raise Mann or seek correction, but relied on R v  Cunningham for the proposition that a failure by counsel to identify an issue is not dispositive: the appellate court must still assess safety. The Court agreed in approach (and accepted the omission was inadvertent), but held safety was preserved on the facts.

(4) I v Director of Public Prosecutions [2001] UKHL 10; [2002] 1 AC 285: “threat” by conduct and the bystander test

Although the appeal turned on mens rea, the Court’s reasoning located affray within the broader interpretive approach in I v Director of Public Prosecutions: section 3 is conduct-focused; a “threat” can be constituted by a show of force or threatening spectacle, but “mere possession” without threatening circumstances is insufficient; and the reasonable-firmness bystander test is central to section 3’s actus reus.

That context mattered because the Court ultimately held that the actus reus finding necessarily implied acceptance of a particularly aggressive use of flares (held under the security manager’s face for a sustained period), which in turn supported the “inexorable” inference of intent under section 6(2).

D. Legal reasoning: why the convictions were safe despite flawed directions

Having found a genuine omission (no proper section 6(2) direction), the Court asked the safety question in the Mann terms it articulated: would any reasonable jury, properly directed, inevitably have concluded the appellants intended to use or threaten violence?

The Court’s safety conclusion rested on the logic of the verdict when set against the competing factual accounts:

  • The appellants’ case was not that the flares were accidental; it was that they were used for a benign purpose and held away from people at a safe distance. On that version, the flares would not amount to using/threatening violence towards another person.
  • The prosecution case was that flares were deliberately used close to the security manager’s face for around two minutes, causing breathing difficulty and prolonged after-effects.

Therefore, the Court inferred that by answering “yes” to “used or threatened violence”, the jury must have accepted the prosecution’s description and rejected the benign/safe-distance narrative. On that accepted factual basis, the use of the flares “inevitably involved” an intention to use or threaten violence, making the missing mens rea direction immaterial to the outcome.

The Court also noted that the prosecution relied on the first limb of section 6(2) (intent), not recklessness/awareness—narrowing the mens rea issue to a single, verdict-implied question: whether the flare use was intended as violent/threatening conduct.

E. Impact

The decision is significant less because it relaxes the requirement to direct on mens rea (it does not), and more because it clarifies the appellate handling of affray convictions where section 6(2) was not properly left:

  • Routes to verdict must include mens rea where it is contestable. The Court treated the Crown Court Compendium guidance (“crucial importance” that questions encompass all contestable elements) as a practical benchmark. Trial judges and advocates should ensure section 6(2) is expressly reflected in both legal directions and the route to verdict.
  • Safety can be preserved where the verdict necessarily resolves mens rea. Even with flawed directions, a conviction may stand if the only realistic route to the jury’s actus reus finding necessarily entails intent (or awareness) under section 6(2). The “inevitable/inexorable” inference threshold is demanding, but attainable where the defence account, if accepted, would negate actus reus itself.
  • Particular relevance to protest-related affray prosecutions. Cases involving “violence” by objects, smoke, flares, or other conduct short of direct striking may generate genuine disputes about whether the conduct was “violent” and (separately) whether it was intended as violent/threatening. This judgment signals that where juries must reject a benign explanation to convict on actus reus, intent may be effectively implicit—but practitioners should not rely on that as a substitute for proper directions.

4) Complex concepts simplified

Actus reus vs mens rea
Actus reus is what was done (here: using or threatening unlawful violence in a way that would cause fear to a bystander of reasonable firmness). Mens rea is the required state of mind (here: intending violence/threats, or being aware one’s conduct may be violent/threatening).
Affray (Public Order Act 1986)
Section 3 defines the conduct element; section 6(2) defines the fault element. A person can only be guilty if both are proved.
Route to verdict (RTV)
A structured set of jury questions designed to ensure each legal ingredient is addressed in the correct sequence. If an ingredient (such as mens rea) is omitted, jurors may never decide it—especially where the judge emphasises the RTV as the “map” to the verdict.
“Inexorable inference” test
An appellate approach drawn from R v Mann [2002] EWCA Crim 3045: if the jury were not directed on an ingredient, the conviction can only stand if, on the findings necessarily implicit in the verdict, any reasonable jury properly directed would inevitably have found that ingredient proved.

5) Conclusion

Summerson & Anor v Rex confirms that affray under the Public Order Act 1986 requires a distinct section 6(2) mental element and that routes to verdict should explicitly capture that requirement. The Court nonetheless upheld the convictions because, on the only factual basis consistent with the jury’s finding that the appellants “used or threatened violence”, intent to use or threaten violence was an inevitable conclusion. The case therefore stands as a practical warning: misdirections on mens rea may be survivable on appeal only where the verdict necessarily and rationally entails the missing element—an exception, not the rule.