AG v Capuano

CourtRoyal Court
Judgment Date18 November 2003
Neutral Citation[2003] JRC 211
Date18 November 2003

[2003] JRC 211


(Samedi Division)


Sir Philip Bailhache, Bailiff

The Attorney General
Antonio Romano Capuano

A.J. Belhomme, Crown Advocate.

Advocate D. Cadin for the Defendant.


Taylor v DPP [1973] 2 All ER 1108; [1973] AC 964.

Scarrow, Brown & Attlesey [1968] Court of Appeal (Cr. Div.) 591.

Summers, Burns & Bond [1972] Court of Appeal (Cr. Div.) 604.

Archbold (2003 Edition): p.p. 2409–16: para 4–293.

Archbold (42 nd Edition: 1985).

Smith [1997] 1 Cr. App. R. 14.

A.G. v Shewan (4th February, 1999) Jersey Unreported; [1999/22].

Shewan v A.G. (16th July, 1999) Jersey Unreported; [1999/129].

Button v DPP [1966] AC 591.

R. v Malashev (14 th February, 1997) [No. 96/02279/x4] Court of Appeal (Cr. Div.).

Russell on Crime (12 th Edition) (1961).

Assize trial on not guilty plea to one count of affray. At the end of the Crown's case, an application by Defence Counsel that there was no case to answer.




Counsel for the defendant has made a submission, in the absence of the jury, that there is no case to answer by the defendant. The well-known test that I have to apply is set out in paragraph 4 – 293 of Archbold (2003) in these terms,

“A submission of no case should be allowed when there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury properly directed could convict. In such a case a directed verdict must be taken from the jury” .


What then is an affray in Jersey law? In earlier editions of Archbold the offence is defined as fighting by two or more persons to the terror of Her Majesty's subjects. Since the late 1960s the offence has been subject to considerable judicial development in England. The editors of Archbold draw upon a judgment of the Court of Appeal in England in the R v Taylor and conclude that the elements of affray now are:

  • (i) Fighting by one or more persons or a display of force by one or more persons without actual violence;

  • (ii) in such a manner that reasonable people might be frightened or intimidated.


The learned editors draw attention to the need to read this definition in the light of observations made by Lord Hailsham when the case reached the House of Lords under the name of Taylor v DPP. One observation of Lord Hailsham is worthy of particular note in the context of this case.

“The extent to which the display of force without actual violence constitutes the offence of affray even where the element of terror is present is still not wholly clear. It seems that the brandishing of a fearful weapon does constitute the offence and has always done so although in most cases where this is done by an individual, a charge under the Prevention of Crime Act (1953) would now seem preferable. From the older authorities it seems plain enough that mere words unaccompanied by the brandishing of a weapon or actual violence are not enough. But all sorts of things are arguably a display of force. I am anxious that nothing in this case should be construed as necessarily implying that anything less than an unlawful participation in a violent breach of the peace will be enough to satisfy the requirement” .


The Crown asserts that it is the continuing series of events at the building site that constitutes the affray but the reality, as it seems to me, is that the series of events...

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4 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...Criminal Pleading, Evidence & Practice (2010). R v P [2008] 2 Cr. App. R. 6 CA . Sangan v AG [1987–88] JLR 196 . AG v Capuano [2003] JRC 211 . R v Greig [2010] EWCA Crim 1183 . R v Thomas and others [2009] EWCA Crim 1682 . Snooks v. AG [1997] JLR 253 . R v Stoddart 2 Cr. App. R. 217......
  • Michel v AG
    • Jersey
    • Court of Appeal
    • 27 July 2011
    ...2 Crim App R 6 CA . This has been accepted as the correct principle by the Royal Court inSangan v AG [1987–88] JLR 196andAG v Capuano [2003] JRC 211, and we, as the court of Appeal endorse that approach.” 33 Of the two ingredients of the offence – tendency and intent – the Applicant focusse......
  • Michael Thomas Calvert v The Attorney General
    • Jersey
    • Court of Appeal
    • 21 May 2013
    ...Authorities Attorney General v Gorvel [1973] J.J. 2503 . HM Attorney General v Shewan et ors [2005] JRC 049A . Attorney General v Capuano [2003] JRC 211 . Archbold Criminal Pleading, Evidence and Practice 2013. R v Russell-Jones [1995] 1 Cr. App. R. 538 . Attorney General v Knowles 2002/......
  • The Attorney General v Sebastian Gasulla-Sole
    • Jersey
    • Royal Court
    • 19 June 2013
    ...Health Act 1983. Firearms (Jersey) Law 2000. Harrison -v- AG [2004] JCA 046 . AG -v- Gasulla-Sole and Ors [2004] JRC 120 . AG -v- Capuano [2003] JRC 211 . Inferior Number Sentencing — grave and criminal assault — carrying a firearm with criminal intent. Sentencing by the Inferior Number of ......

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