I and Another and Another v. Director of Public Prosecutions and I and Another and Another v. Director of Public Prosecutions

Factual and Procedural Background

On the evening of 21 October 1997 the police received an anonymous call that approximately thirty youths were gathering in a street within The City. When a marked police vehicle arrived, officers observed forty to fifty youths on a raised concourse outside a residential block. Eight or nine of them were visibly carrying petrol bombs. The group dispersed when the police vehicle came into view, and three individuals (now the Appellants) were arrested after discarding their petrol bombs. One Appellant told police he belonged to a gang that intended to fight a rival group.

The Appellants were charged with affray contrary to section 3(1) of the Public Order Act 1986 and convicted by a stipendiary magistrate sitting in a youth court on 22 July 1998. They appealed by way of case stated to the Divisional Court, which dismissed the appeals. The Divisional Court nonetheless certified three questions of law of general public importance. The present judgment of the House of Lords (constituted by Judge Bingham, Judge Clyde, Judge Hutton, Judge Hobhouse, and Judge Scott) addresses those questions and the resulting appeals.

Legal Issues Presented

1. Whether the visible possession of a weapon (here, petrol bombs) can, without more, amount to a “threat of unlawful violence” for the purposes of affray under section 3(1) of the Public Order Act 1986.
2. Whether, to satisfy section 3(1), the threat of unlawful violence must be directed toward a person or persons actually present at the scene.
3. Whether it is necessary that the threatened person perceive the threat in order for the offence of affray to be made out (ultimately held not to arise given the court’s answers to the first two questions).

Arguments of the Parties

Appellants’ Arguments

• Affray requires a threat of violence toward a present victim; because no member of the rival gang or public was present, the offence was not made out.
• Mere possession of concealed or un-brandished weapons cannot constitute a threat under section 3(1).
• Section 3(1) should be interpreted strictly in light of common-law authority limiting affray to direct confrontations.

Respondent’s Arguments

• The sight of primed petrol bombs carried by a large group is inherently threatening; therefore visible possession alone is capable of amounting to a threat of unlawful violence.
• The threat was directed at anyone in the vicinity, including police officers who arrived on the scene; physical presence of a specific, identified victim is unnecessary.
• Statutory language and legislative history support a broader reading that encompasses threats to persons who may be close by even if not in direct view.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hutton delivered the leading opinion. The court’s reasoning progressed as follows:

1. Visible possession can equal threat. Interpreting the ordinary meaning of “threatens unlawful violence” and drawing on common-law authorities (Sharp, Taylor), the court held that publicly carrying dangerous weapons, such as primed petrol bombs, may constitute a threat even if the weapons are not brandished.
2. Presence requirement for the victim. Examining the legislative history, particularly the Law Commission Report that shaped section 3, the court concluded that Parliament intended affray to address face-to-face confrontations. Therefore the threatened person (or persons) must be physically present at the scene; threats to people not present fall outside section 3.
3. Application to the stipendiary magistrate’s findings. The magistrate expressly found that, aside from police officers, no other individuals were present, and that the youths dispersed immediately with no threat directed toward the police. Consequently, although the conduct was objectively threatening, it did not amount to a threat “towards another” who was present.
4. Divisional Court error. The Divisional Court had inferred a generalized threat to “anyone in the vicinity,” including police, but that inference was inconsistent with the magistrate’s factual findings. The Lords therefore held that the Divisional Court applied the legal test incorrectly.
5. Certified questions resolved. (a) The first question—whether overt possession of a weapon can constitute a threat—was answered affirmatively. (b) The reformulated second question—whether the threatened person must be present—was also answered affirmatively. (c) Given those answers, the third question did not arise.

Holding and Implications

Holding: APPEALS ALLOWED; convictions for affray quashed. The House of Lords answered “Yes” to both certified questions one and two (as reformulated) and found it unnecessary to answer the third.

Implications: The decision clarifies that affray under section 3 of the Public Order Act 1986 requires a threat of unlawful violence directed at a person actually present at the scene. Prosecutors must therefore ensure that a live victim is identified or identifiable when charging affray; otherwise alternative offences—such as possession of offensive weapons or explosives—may be more appropriate. The judgment narrows the scope of affray and curtails the emerging practice of using the offence where no confrontation with present individuals exists.