by sussexpob » Wed Jan 17, 2018 1:53 pm
You have to make the distinction between the actus reus of offences against the person (OAPs), and of public order offences (POAs) to understand the difference. With OAP, the guilty act is to use violent actions that inflict some form of physical apprehension of violence or actual physical violence onto the victim that causes some form of damage. The damage is the aggravating factor, and as a victim receives more harm, the severity of the offence increases. So the actus reus is multi layered, a perpetrator has to (a) use violence (b) use violence against a victim (c) that violence has to satisfy a level of physical harm for each level of offence. So, I have a metal rod and swing it at you but miss, assault. You fear I could very likely hurt you and are threatening you with future violence. Or, I swing the rod but you dodge and I only manage a non-painful blow. Battery. If I hit you on the arm and bruise you, ABH. If I hit you and cut you and you need stitches, GBH. If I smash you full on the face and leave you in a coma, malicious wounding.
With POAs, the actus reus is largely the same, but rather than the victim being the person being hit by the rod, the victim now is society represented by the bystander that simply stumbles onto the scene from round the corner. We have all been there no doubt, walking at 2am through a town centre as a few drunks shout hostile nonsense at each other, and feel a little panicked or unsafe. While these people are concerned maybe only for themselves, they are too drunk or irrational due to anger to really be concerned with thinking properly, so this always brings with it a chance that someone innocent feels threatened, or foresees they may be dragged into something due to their proximity. So with a public order offence of affray, the actus reus is defined as a net effect of a group brawling and what effect that would have on people fearing it might spiral out of control. So while me smashing you with a rod round the head as part of a brawl wont land me into prison on a malicious wound charge, it is going to make a witness to the brawl believe that the situation is out of control, and they are going to as a result believe they are more in danger of being caught in the middle, or be forced to witness more unpalatable acts of violence. So this would aggravate the offence.
The problem is, affray is very useful for the police to arrest people, but once charged and taken to court, it is not useful at all. A policeman on the beat at 2am gets called to a fight, they arrive and see a melee, its not necessary for them to identify victims and who is beating up who; they just arrest everyone for affray, and then investigate what happened, and can charge for OAP afterwards as they see suit. Very useful for them as a blanket offence to get people back to the station, buy time, and stop melee's by having a wide offence to intervene.
Once they get to courts, affray's are notoriously hard to make stick. Some local CPS groups make it policy not to charge them for this reason, and the police pretty much hate it when they get told to charge for affray, it is likely their work is a waste of time. This is because its often hard to charge multiple defendants for the same crime, when the balance of blameworthiness is often very up and down. Its far easier to prove, with witnesses and CCTV, that a given punch knocked someone's tooth out and damaged them, then prove a fictions person watching would think the same might happen to them after watching it.
Relating to this case, if a complaint had been made then the police would almost certainly have to acknowledge and investigate the separate components of the incident without resorting to the rather easy option of charging affray on all its perpetrators. This would no doubt be not very beneficial for Ben, because he is the person who strikes the telling blow on the video. It leads me to believe that (a) The others perpetrators accept that their own conduct was aggravated enough to have already escalated the level of violence to the point that Ben's knock out blow made no difference. A key component on the video, and once that looks very badly for the other two, is the bottle throwing. Bottle throwing in the context of affray always serves to put the scuffle at a higher level (b) the defendants as a whole came to an agreement between themselves not to level charges against each other, knowing that as a group they had more chance of fighting the charge of affray successfully. As I said, affray's dont stick much, whereas there is enough punches thrown to definitely charge successfully for OAPs on all of them. Even someone like Hales gets a boot in at one point, i believe, whereas his conduct in the group action is not sufficient to charge him for affray. It is suspicious in this event though, because Stokes has more to lose on an OAP charge, while the others clearly have the likelihood of his actions bringing the groups into a wider punishable level by being charged together. I think by memory, Stokes is the one acting someone who is already down, and hes the one who hunts the retreating guys and lays one out. Both these actions are ones that dramatically aggravate this affray, so not fighting it could lead the others to being punished for his actions due to those being the ones that are judged to have shocked the passerby the most. Hitting on the floor and hitting defenceless people are ALWAYS looking bad. All I can think of, if there hasnt been agreement outside of the police scope, that the other defendants are being advised that the bottle throwing is on the same level. Yet, still doesnt make sense, because if its a OAP action, the bottle doesnt land, so if they made a complaint there is little damage to account for. Makes no sense to me.
Affray is very serious, but the more serious, the harder to prove. The indications will be if the magistrate deems it an indictable offence, and sends it to the Crown on the first hearing. If that happens, they should start to worry, but its still a catch 22: the higher the punishment, the more likely the charge doesnt stick. The less the offence is seen as serious, the more likely it sticks, the less the punishment.
What tends to happen, is that magistrates will keep the case, and everyone gets a slap on the wrist. Or it gets sent upwards, the seriousness cant be proved, and it gets watered down to a section 4 drunk and disorderly, and everyone pays a fine.
I believe now its been charged as a POA though, the courts cannot change that. They either have to find guilt in affray, Drunk and disorderly or violent disorder.
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