Cross purposes

Talk about being in the wrong place, at the wrong time, with the wrong people. The case of Regina v NW [2010] EWCA Crim 404 reads like a version of the good samaritan turned horribly bad. The Court of Appeal held that, in the offence of violent disorder, the requirement of 'three or more persons who are present together' means nothing more than that the three persons are in the same place at the same time.

The appellant, a schoolgirl in uniform then aged 15, was sitting on a bench with another girl, S. 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 took hold of her arm. At that point the appellant became involved. One thing led to another and the incident escalated into a scuffle. A crowd began to gather. Some shouted abuse at the officers and others became directly involved in the incident, pulling a policeman 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.

So, what began as a trivial dispute over litter developed into a public order situation which, at its height, involved some 40 to 100 people. The appellant NW did not know any of those who involved themselves in the incident, nor did she encourage them to do so.

The offence of violent disorder is defined by section 2 of the Public Order Act 1986 (see box below).

At trial, the appellant argued that there was no case to answer because the offence required that three persons are 'present together' and this connotes a measure of concerted action, whereas the appellant had been acting alone in an incident into which unknown people had then involved themselves without her encouragement. The trial judge rejected that submission. He noted that, in contrast with the offence of riot, violent disorder does not require the element of 'common purpose'. The defendant was duly convicted.

The issue for the Court of Appeal was whether, for a person to be guilty of violent disorder, they must deliberately act in combination with at least two other persons, or whether it is sufficient that at least three persons be present, each separately using or threatening unlawful violence.

Causing fear

The Court of Appeal looked at the Law Commission report which provided the foundation of the Public Order Act 1986. Paragraph 5.29 of the report includes the following passage: '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.'

The Court of Appeal said it was important to look at the mischief at which the 1986 Act was aimed. The offences of riot, violent disorder and affray are all aimed at public disorder of a kind that would cause an ordinary person of reasonable firmness present at the scene to fear for their personal safety. The fear caused will depend primarily on the nature of the disorder and the numbers involved. The offences are graded in their seriousness in part according to the numbers involved (12 for riot, three for violent disorder, one or more for affray). The offence under section 2 is not concerned with the origins of the violence or the individual intentions of the participants. Instead, the offence is concerned with the apprehension or fear caused to a potential bystander by scenes of violence involving large numbers of people.

As Moore-Bick LJ explained: '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 cooperation 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.'

Some might say the schoolgirl was pretty unlucky that an angry crowd of bad samaritans decided to intervene in her little spat with a policeman. As she learned the hard way, violent disorder requires no 'togetherness'. Or, as The Beatles put it: 'One and one and one is three... come together right now over me.'

Public order law continues to confuse. Luckily, there is now an excellent new book out called The Law of Public Order and Protest (OUP 2010) of which David Rhodes is one of the authors together with HHJ Peter Thornton QC, Ruth Brander, Richard Thomas, Mike Schwarz and Edward Rees QC.