Summary of Court of Appeal (Criminal Division) Opinion

Factual and Procedural Background

This opinion, delivered by Judge Holgate (with Judges Wall and Spencer concurring), concerns an appeal by Appellant (1) and Appellant (2) against convictions arising from a protest at Company A's offices in The City on 27 September 2021. A group coordinated by Group A attended the address; some participants sprayed red paint on the building façade with fire extinguishers, and smoke flares were ignited. Witness (Security Manager) and other building staff intervened and described being exposed to paint and smoke and suffering minor injuries and distress. Appellant (1) and Appellant (2) were charged on an indictment including conspiracy to commit criminal damage (Count 1), affray (Count 2) and assault with intent to resist arrest (Count 3). At trial in the Crown Court at Isleworth before Judge Duncan, Appellant (1) was convicted of Count 1 (conspiracy to commit criminal damage) and Count 2 (affray) and acquitted on Count 3; Appellant (2) was convicted of Count 2 and acquitted on Counts 1 and 3. Both appellants received community orders. They appealed against conviction by leave of the single judge.

Legal Issues Presented

1. Whether the judge's failure to give a discrete legal direction on the mental element (mens rea) of affray under s.6(2) of the Public Order Act 1986 rendered the convictions on Count 2 unsafe, having regard to R v Mann [2002] EWCA Crim 3045 and related authorities.
2. Whether the omission of any mens rea question in the route to verdict for Count 2 (despite a differing formulation in the written legal directions) affected the safety of the convictions.

Arguments of the Parties

Appellants' Arguments

• The jury were not directed as to the mental element of affray by a discrete legal direction in accordance with R v Mann [2002] EWCA Crim 3045.
• The mens rea was not included as a specific question in the route to verdict (see R v Stevens [2023] EWCA Crim 1182), rendering the convictions on Count 2 unsafe.
• Counsel accepted the omission was inadvertent and apologised for not raising the point at trial.

Respondent's Arguments (Attorney Hooper)

• The written legal directions included the word "deliberately" in para.43, which drew the jury's attention to the necessary state of mind.
• The prosecution relied on the first limb of s.6(2) (intention to use or threaten violence) and argued that the facts (particularly the use of flares close to the security manager's face) meant the mens rea was inevitably established.
• Any failure to refer to authorities at trial did not determine the safety of the convictions; safety must be assessed under the applicable test (see R v Cunningham [2025] EWCA Crim 662 as cited in the opinion).

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory structure of affray: s.3(1) of the Public Order Act 1986 defines the actus reus (use or threat of unlawful violence causing a person of reasonable firmness to fear for safety) and s.8 expands "violence" to include violent conduct not limited to injury. Section 6(2) supplies the mens rea: a defendant must either intend to use or threaten violence or be aware that his conduct may be violent or threaten violence.

The Court reviewed R v Mann and related authorities, noting Mann establishes a presumption that omission of a mens rea direction is a serious flaw, but whether it renders a conviction unsafe depends on whether the actus reus findings inevitably establish mens rea. The Court examined the written legal directions and the route to verdict given at trial: the written directions included the word "deliberately" when describing the first ingredient of affray (para.43), but the route to verdict's first question for Count 2 omitted that word. The route to verdict did not pose any discrete question requiring the jury to decide mens rea for Count 2.

The Court observed that routes to verdict provide the jury with the map of contestable elements, and jurors could reasonably treat omitted issues as unnecessary to decide. The single-word use of "deliberately" in the general directions, without explanation and with an omission from the route to verdict, could not be taken as an adequate legal direction on intention for Count 2. The appellants' counsel's failure to spot the omission was accepted as inadvertent and not tactical.

Applying Mann's test, the Court asked whether a reasonable jury, properly directed on mens rea, could only have concluded that each appellant intended to use or threaten violence. The Court concluded that the jury's affirmative answer to question 1 (that each defendant used or threatened violence) necessarily meant they accepted Witness (Security Manager)'s account that flares were held under his face for about two minutes and rejected the appellants' accounts that flares were pointed away and used only for photographic effect. That factual acceptance, in the Court's view, made it inevitable that each appellant intended to use or threaten violence. Therefore the omission did not render the convictions unsafe.

Holding and Implications

APPEALS DISMISSED

Direct effect: The convictions of Appellant (1) and Appellant (2) on Count 2 (affray) were upheld and the appeals against conviction were dismissed. The opinion did not purport to establish a new legal principle beyond applying the Mann test to the facts; no broader alteration of the law was announced.