Presentation Flashcards
Ibrahim: What is your main objection to the hypothetical bystander test? Why do you believe it is an unfair way to establish guilt?
In cases where the hypothetical bystander test is used (s1-3), there may be no real person who was actually afraid or harmed.
The exact wording to derive this from is No person of reasonable firmness need actually be, or be likely to be, present at the scene [the Hypothetical Bystander!]
Prosecuting someone without an actual victim raises ethical concerns about punishing conduct that may not have caused real harm. Is it fair to prosecute someone who has not caused fear to someone else. You can be convicted for something that you did not do?
Retributivist scholar Duff (Answering for Crime: Responsibility and Liability in the Criminal Law) argues that criminal liability should be based on moral blameworthiness. Punishing someone solely for risk-taking, without actual harm or fear caused, is therefore problematic.
Leeson v DPP - although conviction quashed
Leeson v DPP
Leeson v DPP (2010), Carol Leeson was convicted of affray under Section 3 of the Public Order Act 1986 after she, while intoxicated, threatened her partner with a knife in their home. However, no one else was present at the scene, and the threat was directed solely at her partner. On appeal, the High Court overturned the conviction, ruling that affray requires conduct that would cause fear to a hypothetical bystander, but in this case, no such bystander was present or likely to be present.
How This Supports the Hypothetical Bystander Argument
This case illustrates the issue with the hypothetical bystander test. The law states that “No person of reasonable firmness need actually be, or be likely to be, present at the scene.” This means that even if no real person was placed in fear, a conviction can still be secured based on the idea that a theoretical person could have been afraid. In Leeson, there was no actual public disturbance, yet she was initially convicted of affray, highlighting the potential for punishment even when no real harm occurred.
Counters to question 1
Reckless Driving Laws: These are justified because they are based on empirical data and statistical probabilities showing that reckless driving directly increases the likelihood of accidents and harm. The risk is concrete and measurable. In 2019 alone, speeding contributed to thousands of deaths (with estimates often cited in the range of 9,000+ fatalities).
Reckless Driving Laws: These are justified because they are based on empirical data and statistical probabilities showing that reckless driving directly increases the likelihood of accidents and harm. The risk is concrete and measurable. In 2019 alone, speeding contributed to thousands of deaths (with estimates often cited in the range of 9,000+ fatalities).
The hypothetical bystander test doesn’t measure real risk but perceived risk—someone could be convicted based purely on what an imaginary person might have felt. This is radically different from crimes like reckless endangerment, where statistical probabilities show actual harm is likely to result.
Do you believe this leads to inconsistent rulings or subjective enforcement? Are there examples where this standard has been applied in a questionable way?
The Subjectivity of the “Reasonable Firmness” Test in R v Davison
The “Reasonable Firmness” Test Lacks Clarity
The Public Order Act 1986 (Section 3) states that affray occurs if a “person of reasonable firmness” would fear for their safety.
However, the law does not define who this reasonable person is, leading to uncertainty in its application.
Different individuals have different thresholds for fear, making the test subjective rather than truly objective.
The Problem in R v Davison
In Davison, the defendant waved a knife during a domestic dispute at home.
Police officers arrived, and the court used their reaction to determine whether affray was committed.
However, police officers are trained to handle violent situations—they do not react in the same way as an ordinary civilian.
Why This Creates Legal Inconsistencies
If a reasonable person is meant to be an ordinary bystander, then using a police officer’s reaction makes the test inconsistent.
A civilian might react with more fear than an officer, while an officer may react with more authority or training—which standard should apply?
The lack of clear legal guidance means the test is applied differently in different cases, leading to potential unfairness in convictions.
Conclusion
While Davison was convicted because the police officers feared for their safety, the case highlights a deeper issue—whether the “reasonable firmness” test should be based on an ordinary person or someone with specialized training. The uncertainty in this definition makes the law subjective and open to inconsistent application.
R v Davison
- Domestic dispute in a flat.
- Davison waved a knife.
- When police arrived, he swiped the knife at them and said, “I’ll have you.”
- Convicted of affray (upheld on appeal).
- Court ruled that the situation posed a real risk of public disorder due to police fear?, justifying affray.
- But should police be considered as a person of reasonable firmness.
Counters to question 2
Theft (which uses the “reasonable person” test) is different because it assesses whether an actual victim suffered harm due to a defendant’s failure to act responsibly.
The hypothetical bystander test doesn’t require anyone to be harmed—it manufactures a victim.
This creates a dangerous precedent where courts convict based on a hypothetical fear rather than real-world harm.
BOTH: would moving towards such a system – of demonstrating real fear – address concerns about subjectivity while still maintaining public safety?
Moving towards a system that requires evidence of real fear strengthens enforcement by grounding liability in actual harm, reducing subjectivity, and preventing arbitrary application of the law.
Supported by Professor Andrew Ashworth (Principles of Criminal Law, 2019, p. 283) criticises the hypothetical bystander as a “dangerously vague construct,” allowing courts to convict without direct evidence of actual wrongdoing
The Test Is Vulnerable to Bias and Misuse
- Courts may apply the test differently based on social, racial, or political biases .
- Also found in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, the House of Lords ruled that public order laws must not be used to disproportionately criminalise protestors .
In Ibbitson v UK (ECHR App No 46295/99), the European Court of Human Rights (ECHR) warned against vague legal standards that allow arbitrary enforcement .
So by getting rid of the hypothetical bystander’s test, you avoid having can easily be shaped by cultural and political biases , making this test ripe for abuse.
Counter Question 3
PATERNALISTIC APPROACH. FERGUSON ‘SMOKE GETS IN YOUR EYES’ -> COULD WE DO SOMETHING OTHER THAN CRIMINALSING. PROPORTIONAL. MAINTAIN PUBLIC SAFETY. SOCIAL STIGMA. ITS TOO HARSH TO PENALISE SOMEONE FOR SOMETHING THEY HAVE NOT DONE. COULD PENALTIES OR FINES BE HELD. HARM DONE. LOOK HOW IT WORKS.
Question 4 Reform
Using Actual Victims Instead of Hypothetical Ones
In DPP v Orum [1989] 1 WLR 88, the court emphasised that disorderly conduct should be judged based on actual reactions , not theoretical ones.
A better legal standard would require the prosecution to prove that an actual person suffered genuine distress or fear .
Relying on Objective Harm Metrics
Instead of asking whether a hypothetical person would be afraid, courts should assess:
Whether the defendant’s actions posed an actual danger , and
Whether real people were demonstrably harmed
Getting rid of s2(3) -> That nobody needs to be present
