Neutral Citation Number: [2006] EWCA Crim 17
Case No: 2005/5620/B3 2005/5621/B3 2005/5818/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
MR. JUSTICE FIELD

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/01/2006
Before :

LORD JUSTICE DYSON
MR JUSTICE TOMLINSON
and
MR JUSTICE ANDREW-SMITH
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Between :

	REGINA	Respondent	
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	CAREY, C AND F	Appellant	

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Simon Myerson QC and Heather Weir (instructed by West Yorkshire CPS) for the Appellant
Michael Harrison QC and M. D Colborne (instructed by Yasmin and Shaid) for Claire Carey
Gareth Evans QC and Stephen Wood (instructed by Messrs Lumb and Mcgill) for C
Paul Watson QC and Simon Myers (instructed by McManus and Seddon) for F

Hearing date : 12th January 2006
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Judgment
Lord Justice Dyson : This is the judgment of the court.
1.	These three appellants were tried at Leeds Crown Court on an indictment which charged them with manslaughter (count 1) and affray (count 2).  On 30 September 2005, they were all convicted on count 1 and, save for  C, count 2 (she had already pleased guilty to count 2).  On 19 October, they were sentenced as follows.  Claire Carey (who is now aged 19) was sentenced to detention for public protection for manslaughter, a minimum of 2 years being specified under section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, and to a concurrent extended sentence of 3 years for affray, comprising a custodial term of 2 years’ detention and 1 year’s extended licence.  C (who is now aged 15) and F (who is now aged 17) were both sentenced to 24 months’ detention and training order for manslaughter and to a concurrent 18 months’ detention and training order for affray.  
2.	All three appeal against conviction by leave of the trial judge (Field J), who granted a certificate of fitness for appeal under section 11(1A) of the Criminal Appeal Act 1968 in these terms: 
“[1] I directed the jury in accordance with my rulings:
(a) that it was enough to establish manslaughter that all sober and reasonable persons would have realised that the actual infliction of violence on Aimee would subject her to some physical harm;
(b) that it was not necessary to prove that the physical harm actually inflicted was a cause, or a substantial cause, of death; and
(c) that it was immaterial that the defendant could not have known or foreseen either that the affray or any physical harm actually inflicted upon Aimee might cause her to suffer a fatal ventricular fibrillation.
	
[2] I did not direct the jury that it was necessary for them to be sure that the individual acts or threats of violence of the defendant, constituting her part in the affray, were in themselves a substantial cause of death.”
3.	At the outset of the hearing of the appeal, we also gave them leave to appeal against their convictions on the other grounds on which they relied to which we shall come in due course.  Field J refused to certify that the case was fit for appeal on sentence.  Their application for leave to appeal against sentence was referred by the Registrar to the Full Court.
4.	There was a co-accused, H.  He was acquitted on both counts.
The facts 
5.	By the close of the prosecution case, the material facts were not substantially in issue.  On 7 June 2005, the deceased Aimee Wellock (aged 15) and three friends, James Devanney, Shelley Robinson and Gemma Doyle went for an early evening walk in the Chellow Dene area of Bradford.  This is a local beauty spot near a reservoir.  The three appellants had met H earlier that day.  They had spent the afternoon by the reservoir drinking alcohol.
6.	At about 8.30 pm, Aimee and her group met the appellants’ group by chance near some steps leading down to the reservoir.  Carey and H asked Aimee’s group whether they had any cigarettes.  When Aimee’s group said that they had none, they started poking fun at them.  One of them referred to the fact that Aimee danced at a local stage school and called her the “Spotlight Fairy”.  They also made fun of Gemma and Shelley, calling them “posh”.  H then squared up to James and asked him if he wanted a smack and falsely accused James of beating him up outside a fish and chip shop.  As Aimee’s group moved down the steps to get away from them, H shouted “shall we throw them in the water?”  C said to Aimee “if I hit you would you hit back?”  Carey pointed to Shelley and said “oh she looked really scared”.  At some point, referring to Shelley, Hsaid “leave her, she looks really scared”.  But he also said to the others “you wouldn’t dare bang one of them”.  The appellants then began to laugh and one of them told Aimee’s group that they had better stop or else they would “bang” them. 
7.	Aimee’s group tried to move away and the appellants followed them.  Carey then without any justification struck James from behind and he moved away from both groups.  Two of the female appellants (one of whom was C) walked behind Gemma and stood on her flip-flops.  Aimee’s group then came to a low broken-down wall and the appellants moved towards them, hemming them in.  F asked Aimee for her charity wrist band, which she handed over.  C kept telling them to stop looking at her.  Carey then punched Shelley in the face three times, causing her to fall over.  She carried on the assault by kicking her on the nose, mouth and top of the right arm while she was down.  She had her back to the other appellants at this point.  
8.	C then attacked Aimee, who was about 10 metres away from where Shelley was being assaulted.  She pulled her head back and punched her in the face.  Aimee dropped to the ground cowering.  F attacked Gemma by punching her in the face.  She pushed her to the ground and started hitting her in the back of the head and pulling her hair and hitting her across the face.  The attack on Aimee and her friends lasted about one minute.  It stopped when two boys arrived on the scene on a motor-bike.  The boys told the assailants to stop and they ran away. 
9.	Aimee was the first of the victims to run off.  She ran towards some houses covering a distance of 109 metres over rough grass and up a slight slope.  The next person of Aimee’s group to run was Gemma.  Shelley was picked up by one of the boys on the motor-bike.  Gemma and then Shelley caught up with Aimee and the three of them started to walk.  Shelley said that she felt sick and Aimee said that she felt faint.  Shelley and Gemma tried to support Aimee and help her along, but tragically Aimee collapsed.  She died that same night.  
10.	Two medical experts were called on behalf of the Crown at the trial. Dr Survana, a consultant histopathologist, who examined Aimee’s heart and Professor Milroy, who conducted the post mortem.  They said that the immediate cause of death was ventricular fibrillation (dysrhythmia). When ventricular fibrillation occurs, the heart stops pumping blood to the vital organs.  They said that collapse would have followed within a few seconds of the onset of ventricular fibrillation.  She might not have died if she had not run 109 metres. Both doctors accepted that the event most proximate to the collapse and therefore most likely to have been the precipitating factor which led to Aimee’s death was her running away from the incident.  
11.	The medical evidence established that Aimee suffered from a severely diseased heart, which condition was congenital and progressive.  Her vulnerability was unknown to the doctors who had treated her for certain medical conditions which affected her skin, teeth and hair. The lay evidence established that Aimee was physically fit and sufficiently robust to participate in dancing and other physical activities appropriate to her age.  Her close family were unaware of any physical limitations to her ordinary activities.  After being assaulted by C, she showed no signs of physical injury or distress.  Shelley said “when I was running there was nothing apparently wrong with Aimee.  When I caught up we started walking…We carried on and then all of a sudden Aimee collapsed”.  Gemma said: “When I caught up with her there did not seem to be anything seriously wrong with her, though she was scared.  Then all of a sudden she said she felt faint and collapsed.”
12.	The physical injuries suffered by Aimee were described by Professor Milroy.  There was a 0.5 cm area of reddening under the right eye; bruising on the bridge of the nose of 0.8 cm and a red bruise on the back of the right ear 0.6 x 0.2 cm.  Professor Milroy described them as relatively small.   
13.	Shelley sustained a contusion on her right upper arm 4x 3 cms; swelling of the left cheek bone; a tender left side jaw; and tenderness in the area of the chin.  She did not go to her doctor.  Gemma suffered tenderness in the right side of the back of her head, nasal bone area, left side of her lower chest and a tender and swollen left cheek bone.  James Devanney was hit from behind (he did not know precisely where): he said that he did not really feel it.
14.	None of the appellants gave evidence.  Mr Michael Harrison QC told us that, at any rate so far as Carey was concerned, this was because by the close of the Crown case, there were no material outstanding issues of fact.
Submissions of no case to answer
15.	At the close of the Crown case, it was submitted on behalf of the appellants and H that there was no case to answer in relation to count 1 and on behalf of Carey, F and H that there was no case to answer in relation to count 2.  The Crown case in a nutshell was that all the appellants were guilty of affray and that the affray was an unlawful dangerous act which caused Aimee’s death, so that all the appellants were guilty of unlawful act manslaughter.  The judge refused to withdraw either count from the jury.  It is submitted on behalf of all the appellants that the judge should have held that there was no case to answer in relation to count 1, and on behalf of Carey and F that he should have held that there was no case to answer in relation to count 2.  Since affray is the unlawful act relied on by the Crown to found the charge of manslaughter, we shall start by considering whether the judge was right to reject the submissions in relation to count 2.
Affray
16.	So far as material, section 3 of the Public Order Act 1986 provides: 
“(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of sub-section (1). 
(3) For the purposes of this section a threat cannot be made by the use of words alone.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. 
(5) Affray may be committed in private as well as public places.”
Section 6(2) provides: “A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.”
17.	Mr Harrison (whose submissions were adopted by Mr Paul Watson QC) submitted to the judge that no reasonable jury, properly directed, could have convicted on count 2.  He emphasised the fact that the person of reasonable firmness present at the scene was notional, not actual, and is not the person towards whom unlawful violence is used or threatened. The test is objective and does not take account of unusual vulnerability arising out of any personal characteristics of persons actually present.  He submitted that the threshold of liability must not sink so low that limits to the reach of section 3 are undermined.  He referred to the common law definition of affray and the re-affirmation by the House of Lords in Taylor (Vincent) [1973] AC 964 that affray involves a degree of violence sufficient to terrify a person of reasonably firm character.   Mr Harrison did not go so far as to submit that a jury should be directed in terms of the old common law rather than section 3 of the 1986 Act.  But he drew attention to certain passages in the Law Commission Report “Offences relating to Public Order” (No 183) on which the 1986 Act was based, viz: 
“3.29 The element of terror distinguishes affray from offences against the person and emphasises that not all acts of violence against the person amount to an affray; it also marks the character of the offence as one against public order. It was for these reasons that we proposed in our Working Paper that this element should be retained in any new offence, a proposal which was approved by most of our commentators. The great majority also approved our proposal to express this element in terms of “putting in fear” rather than “terror”, which in our view was unsuitable as a term for legislation;… Any distinction between “putting in fear” and “terror” is, we think, marginal, and we adhere to the view that this terminology is more appropriate for use in new legislation.
3.32 … The essence of the offence which we are recommending is that the defendant uses or threatens violence to the person of another of such a degree that it is capable of having serious repercussions upon the public peace, and as we said in our Working Paper – 
“the function of the bystander is really to act as a measure of the requisite degree of violence …”
To this, we would only add that in devising a suitable test for a new offence, care must be taken to ensure that (as Lord Hailsham stressed in the context of affray at common law) [in Taylor, and §3.38 above] the requirement here is a genuine element of the offence which cannot readily be watered down: any such dilution would weaken the status of the offence as one pertaining to public order.” 
18.	Mr Harrison advanced a number of submissions to the judge.  Before us, his principal submission is that the violence and threats of violence (other than by use of words alone) deployed in the present case were not sufficiently serious to have caused a person of reasonable firmness present at the scene to fear for his personal safety.  He argues that the conduct of the two boys on the motor-bike, who were clearly not frightened by the appellants’ behaviour, provides some evidence that a notional person of reasonable firmness present at the scene would not have feared for his personal safety.  He says that, taken at its highest and as a whole, this was unpleasant unlawful violence, but it was short-lived and resulted in physical harm at the low end of the scale: it did not satisfy the test in section 3 of the 1986 Act.  In truth, the offending in this case comprised a series of assaults. To characterise it as an affray would be, to use the language of the Law Commission paper, to “weaken the status of the offence as one pertaining to public order”.  
19.	On behalf of the Prosecution, Mr Simon Myerson QC seeks to uphold the decision of the judge.  The judge said: 
“…. In my judgment, beginning with the blow landed on James by Claire Carey or the treading on Gemma’s flip flops whichever was the earlier, what the defendants did on the evidence towards Aimee and her group could properly found a conclusion by the jury properly directed that a person of reasonable firmness present at the scene would fear for his personal safety. The defendants were acting as a group. They had been drinking and would have appeared to be looking for a violent confrontation. They picked on members of the public whom they really did not know and on whom, having followed them menacingly, they inflicted wholly unjustified, vicious physical violence, even if the assaults on the girls were over in about a minute and the violence was such that no significant injuries resulted. Accordingly, I reject Mr. Harrison’s second submission.”
20.	Like the judge, we do not find assistance in the common law definition of affray, nor do we consider that section 3(1) and (2) should be interpreted by reference to para 3.29 of the Law Commission paper.  The language of the subsections is plain and should be given its ordinary unglossed meaning.  The effect of the actual or threatened unlawful violence on a person of reasonable firmness present at the scene must be “fear for his personal safety” rather than “terror”.  In our view, the judge was right to reject the submission of no case to answer.  We accept that this incident was short-lived and that the injuries actually inflicted were comparatively slight.  But the appellants were three apparently fit teenage girls, the oldest 18 years of age at the time, acting in a very aggressive manner.  Each of them was unquestionably using and threatening (not only by words) violence towards one or more of Aimee’s group.  For the reasons given by the judge, it was open to the jury to conclude that a person of reasonable firmness present at the time would have feared for his personal safety.  
21.	Before we turn to the issue of manslaughter, we need to deal with two criticisms made by Mr Harrison of the summing up in relation to affray.  He submits that the judge was in error in that (i) he did not give appropriate directions as to the position of the hypothetical bystander of reasonable firmness, and (ii) did not direct the jury that it was unsafe for them to rely on the evidence of James Devanney.  
22.	The judge directed the jury in the following terms: 
“The Prosecution must prove that intending to do so, he or she used or threatened, other than by words alone, to use violence towards Aimee and her group of friends and his or her conduct was such as would cause her person of reasonable firmness present at the scene to fear for his or her personal safety.
To the extent that the Prosecution proved [this] in respect of two or more defendants present at the scene, it is the conduct of them taken together that must be considered when deciding whether their conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. No person of reasonable firmness need actually have been, or had been likely to have been present at the scene. You must imagine a hypothetical man or woman of reasonable firmness witnessing such conduct of the defendants that you find to have been violent or to threaten violence towards Aimee and her group.
It is important to appreciate that the person or persons to whom unlawful violence is used or threatened is not the hypothetical person present at the scene. In other words, the hypothetical person present at the scene is someone watching the incident that is not the victim of the violence or threats of violence or standing so close as to be in effect a participant. Thus it does not follow that the fact that Aimee, Shelley Robinson, Gemma Doyle and James Devaney were very frightened by the incident, that the hypothetical person present at the scene would have feared for his or her personal safety. He may, he or she may or may not have had this fear, it is a matter for you. Note too that the test is “would cause” not “could” or “might cause”.
Bear in mind the age and number of the attackers, and the victims, and the nature and scale of the violence and threats of violence that you find occurred during the incident from its outset to its conclusion. Ask yourselves if the defendants would have appeared, to the hypothetical person, to have been acting as a group or gang and looking for a violent confrontation. 
It is for you to decide when during the incident the defendants began to be violent or to make threats of violence towards Aimee and her group and when the violence and threats of violence ended. However, since for the purposes of the crime of affray, a threat cannot be made by words alone, you may well think that there cannot have been an affray until at the earliest Gemma’s flip-flop’s were trodden on.
Now, ladies and gentlemen, I have suggested the two defendants who trod on Gemma’s flip-flops, those names are not admitted; the people named in my instructions to you are people who do not admit that they trod on the flip-flops, so I want you to strike through with a pencil those names. I will just remind you that Gemma Doyle, when she was asked who it was who trod on her flip-flops identified the girls by reference to a piercing to the lips. One of the girls who trod on the flip-flops was  C, it is not clear who the others were, who the other girl was out of the two. Gemma did say that the blonde girl was walking behind the two who were treading on the flip-flops at this point in time. So the evidence is that there were two girls who trod on the flip-flops, one of whom was C.
The Prosecution have throughout based their contention that H was guilty of affray and of manslaughter on the allegation that he kicked Aimee when the three girls were being attacked. If you are not sure that Hkicked Aimee when the three girls were being attacked, you must acquit him on both counts. If you are sure that he kicked Aimee, you should go on to consider in the light of the evidence as a whole and my directions whether he is guilty or not guilty of affray and manslaughter.”
23.	In our judgment, these directions as to the position of the hypothetical bystander of reasonable firmness were accurate and sufficient.  Mr Harrison makes the particular point that the judge did not remind the jury of the fact and potential significance of the intervention of the motorcyclists.  No doubt this was a matter which was emphasised by counsel in their final speeches to the jury.  It was an obvious point to make that it seems that the two young motorcyclists were not deterred from intervening, but it is a matter of speculation whether they were frightened when they did so. Equally, if they were not frightened, that indicates no more than that they were not in fear for their own safety.  In any case it was not incumbent on the judge to remind the jury of every point relied on by the defence.  He was not in error for failing to remind them of this point.  
24.	As regards the second criticism, the judge identified James Devanney as crucial to the Crown case against H, and by implication not crucial to the case against the appellants. He said “His evidence is therefore crucial to the Prosecution’s case against H and you must ask yourselves whether it is sufficiently reliable to make you sure that H did indeed kick Aimee”.  He rightly made no such statement as to the importance of James Devanney’s evidence in relation to the appellants.  The judge treated the case against H separately (transcript 11/18), no doubt because it depended on the evidence of James Devanney, whereas the case against the others did not.  He then identified the errors in his evidence comprehensively and in unequivocal terms.  It is clear that the jury heeded the judge’s directions because they acquitted H.  In our judgment, there is no substance in the second criticism.  
25.	It follows that the appeals against the conviction on count 2 are dismissed.
Manslaughter
26.	This being a case of alleged unlawful act manslaughter, it is not in issue that the Crown had to prove three elements, namely (i) that there was an unlawful act, (ii) which was dangerous in the sense that the unlawful act subjected Aimee to the risk of physical harm, and (iii) that the unlawful act caused her death.   
27.	At the close of the Crown case, Mr Harrison submitted that count 1 should be withdrawn from the jury.  He contended that causation was not made out because (i) there was no evidence that the affray caused Aimee to run away (and thereby suffer the ventricular fibrillation), and (ii) in any event, there was no evidence that anyone would have recognised that running as she did would subject Aimee to the risk of harm.  The judge rejected both arguments.  He held that causation was a question of fact for the jury.  As regards the second argument, he said that “the necessity of establishing at least a risk of physical harm is a self-contained requirement that has nothing to do with causation, but is concerned only with the dangerousness of the unlawful act.  If the act was unlawful and dangerous in the R v Church sense and caused the deceased’s death, unlawful act manslaughter will be made out.”
28.	The unlawful act relied on in this case is affray.  It is important to emphasise at the outset that the Crown chose not to rely on C’s assault on Aimee as the unlawful act in question.  They could have attempted to secure convictions for manslaughter against C on the basis that she was Aimee’s direct assailant and against the other defendants on the basis of joint enterprise liability for that assault.  The judge invited the Crown to consider putting the case in that way, but Mr Myerson (on instructions) said that the appropriate way to charge the defendants was on the basis that the unlawful act was affray, and on that basis alone.  That was the only way to give effect to the public order nature of the offending and the appropriate way in which to reflect the fact that this was a group offence.  
29.	The second element of the offence of unlawful act manslaughter is that of dangerousness.  The act must be recognisably dangerous.  This is a relatively recent limitation on unlawful act manslaughter and was clearly articulated in those terms by the Court of Appeal in Larkin [1943] 1 All ER 217, where the court said:
“Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter.”
30.	As was explained in the Law Commission Paper “Involuntary Manslaughter” (No 135) at para 2.21, this formulation was unsatisfactory as a complete definition of the offence in that the court not only did not specify who must have been endangered, but also did not explain whether the test for “danger” was objective or subjective.  The position was clarified in Church [1966] 1 QB 59, 70B where this court said:
“…an unlawful act causing death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable.  For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting there from, albeit not serious harm.”

31.	The Church test was subsequently approved by Lord Salmon in Newbury [1977] AC 500, 507C-E, saying that he was sure that in Church the court did not intend to differ from or qualify anything that had been said in Larkin.  We are inclined to agree with Mr Harrison that, pace Lord Salmon, there is a difference between the tests for dangerousness set out in these two cases.  Larkin requires that the act is likely to injure another; Church only requires a risk of some harm resulting.  As Mr Harrison points out, as a matter of ordinary language, there is a difference between foresight that an act is likely to injure another, and foresight that there is a risk of some harm resulting.  But the difference is not material in the present case.  We propose to adopt the Church formulation on the grounds that it is more recent, was expressly approved in Newbury and is more satisfactory (see para 30 above).  
32.	In later cases, the Court of Appeal explained both the type of harm which should have been foreseen, and the knowledge and attributes which could be ascribed to the reasonable person by whose response it is determined whether the act was dangerous.  Two cases are of particular relevance to the present appeal.  In Dawson (1985) 81 Cr App R 150, two masked men, one carrying a pickaxe handle and another armed with a replica gun, while a third kept watch, demanded money from a 60 year old petrol filling station attendant who, unknown to them suffered from heart disease.  Shortly after the men fled, the attendant collapsed and died from a heart attack.  Expert evidence was to the effect that this had probably been brought on by shock, following the attempted robbery.  The men were charged inter alia with manslaughter.  On the question whether emotional shock could amount to harm in the context of manslaughter, the Court of Appeal was prepared to assume that harm includes “injury to the person through the operation of shock emanating from fright” (p 156).  With regard to the knowledge that could properly be attributed to “all sober and reasonable people”, the court said:            
“This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the unlawful act being performed and who knows that, as in the present case, an unloaded replica gun was in use, but that the victim may have thought it was a loaded gun in working order. In other words, he has the same knowledge as the man attempting to rob and no more. It was never suggested that any of these appellants knew that their victim had a bad heart. They knew nothing about him.”
33.	In his summing up, the judge did not make it clear to the jury that the knowledge that they could ascribe to the sober and reasonable person did not include knowledge of the victim’s heart condition (because it was not known to the appellants).  The appeal against conviction was, therefore, allowed. It is self-evident and implicit in the court’s decision that the question whether an attempted robbery committed in the circumstances that occurred in Dawson was a dangerous act as explained in Church might depend upon whether the victim was a healthy 60 year old man (as he appeared to be) or a man with heart disease (as he in fact was). An attempted robbery committed in the circumstances that occurred in Dawson would not inevitably be recognised as subjecting an apparently healthy 60 year old man to the risk of shock leading to heart attack.  
34.	The second case is Watson [1989] 1 WLR 684.  The victim was an 87 year old man who lived alone in a flat and suffered from a serious heart condition.  Late one night, the appellant and another man threw a brick through the flat window and woke up the victim.  They abused him verbally and made off without stealing anything.  He died 90 minutes later as a result of a heart attack.  The appellant pleaded guilty to burglary and he was tried on a charge of manslaughter.  It was submitted on his behalf that the knowledge to be attributed to the sober and reasonable person was confined to that of the appellant at the moment of entry.  There was no evidence that at the moment of entry the appellant knew the age or physical condition of the victim.  The trial judge directed the jury that they were entitled to ascribe to the bystander the knowledge which the appellant had gained during the whole of his stay in the house.  It was held by this court that this was not a misdirection.  The court said that the unlawful act was the “whole of the burglarious intrusion….That being so, the appellant (and therefore the bystander) during the course of the unlawful act must have become aware of Mr Moyler’s frailty and approximate age”.   The appeal against conviction was allowed for other reasons.  Since the offender became aware when carrying out the burglary that the victim was an obviously frail 87-year old man, the jury were entitled to take this into account when deciding whether the robbery satisfied the dangerousness test because of the risk of the victim suffering a heart attack as a result of shock.
35.	Thus, in considering whether the unlawful act is dangerous in the context of manslaughter, it may be relevant to have regard to the attributes of the victim. Of course, a punch which causes a person to fall will almost inevitably satisfy the test of dangerousness.  That is why a defendant who punches a victim who falls and suffers a fatal head injury as a result is guilty of manslaughter. It is foreseeable that the victim is at risk of suffering some physical harm from such a punch (albeit not serious harm), and that is sufficient.  Physical harm includes shock.  The reason why the death resulting from the attempted robbery of the 60 year old petrol station attendant was not manslaughter was that the attempted robbery was not dangerous in the relevant sense.  It was not foreseeable that an apparently healthy 60 year old man would suffer shock and a heart attack as a result of such an attempted robbery.  On the other hand, the jury properly found that it was foreseeable that an obviously frail and very old man was at risk of suffering shock leading to a heart attack as a result of a burglary committed at his home late at night.  
36.	At the close of the evidence in the present case, there was discussion between the judge and counsel as to the directions that the judge should give to the jury.  Very sensibly, the judge had prepared draft directions.  Following the discussion, he distributed these to the jury at the start of his summing-up and they formed the basis of what he had to say on the issues of law that arose.  They are a model of clarity as indeed is the summing up itself.   Mr Myerson had submitted to the judge that one way in which it was open to the jury to consider the issue of manslaughter was on the basis that the affray had caused Aimee to suffer physical shock from which she died.  In our judgment, if the facts had arguably supported such a case, it would have been proper to leave manslaughter to the jury on that basis.  Mr Harrison rightly conceded that there may be circumstances in which a verdict of unlawful act manslaughter can properly be entered where the alleged unlawful act is affray.  Suppose that a very old and obviously frail man is the victim of an affray in which a number of youths participate; and suppose further that he is not physically assaulted, but each of the youths uses and/or threatens violence (but not by words alone) such that a person of reasonable firmness present at the scene would fear for his personal safety; and finally suppose that, as a result of the incident, the man suffers a heart attack from which he dies.  On such facts, the jury might well conclude that the affray would be dangerous in the sense of being an act which sober and reasonable people would recognise subjected the old man at least to the risk of some harm resulting from it (shock), and so could properly find the youths guilty of manslaughter. The case would be analogous to Watson.  
37.	But, in our view quite rightly, the judge declined to leave the manslaughter charge to the jury on the basis that the affray had caused Aimee to suffer shock leading to her heart attack.  In his summing up, the judge explained to the jury that they should “take shock out of this case” because the difference between emotional upset, which is not physical harm, and shock, which is, is a “grey area”.  We agree with this observation, but would go further.  Even if the affray had caused Aimee to suffer shock as opposed to emotional upset, the affray lacked the quality of dangerousness in the relevant sense.  This is because it would not have been recognised by a sober and reasonable bystander that an apparently healthy 15 year old (or indeed anyone else present) was at risk of suffering shock as a result of this affray.  In our view, this affray was less dangerous in the relevant sense than the attempted robbery of the 60 year old petrol station attendant in Dawson.  The risk of that victim suffering shock leading to a heart attack would have been recognised by a sober and reasonable person as more likely than the risk of Aimee suffering shock leading to a heart attack as a result of the affray.  
38.	But the judge did accept the submission of Mr Myerson that it was sufficient that, in determining whether the affray subjected Aimee to the risk of at least some physical harm, it was legitimate to aggregate the infliction of violence on her two friends to the violence on herself, and to decide that that aggregated violence satisfied the test of dangerousness.  The only remaining question was whether that aggregated violence was a cause of death.  That this was the judge’s view appears more clearly in his summing up than in the judgment that he gave when he ruled on the submission at the close of the Crown case.   It is convenient at this point to refer to how the judge directed the jury in relation to count 1.  
39.	The judge directed the jury in the following terms: 
“I move on to Count 1, manslaughter. In respect of each defendant, the Prosecution must prove that, (1) he or she committed an unlawful act; (2) the unlawful act was one which all reasonable and sober people would inevitably realise must have subjected Aimee to the risk of some physical harm; and (3) the unlawful act committed by the defendant cased Aimee’s death. 
Unlawful Act. The unlawful act relied on by the Prosecution is the crime of affray. Even in respect of the defendant whose case you are considering, you are sure that he or she is guilty of affray, the Prosecution will have proved element one in respect of that defendant. If you acquit a defendant of affray, you must also acquit him or her of manslaughter.
Risk of physical harm. The risk of harm to Aimee which all reasonable and sober people must realise the unlawful act subjected her to, must be a risk of physical harm. If you find any of the defendants guilty of affray, the actual infliction of violence on Aimee and her two friends is bound to be part of the affray and you may well think that all reasonable sober people would realise that that part of the unlawful act must have subjected Aimee to at least the risk of some physical harm in the form of bodily injury.
When Mr. Myerson was addressing you, he contended that Aimee faced a risk of physical harm in the form of shock. I have come to the conclusion that you ought not to deal with the case on the basis that there was risk of shock to Aimee. The evidence in my judgement is not sufficient for you to take the case on that basis. The difference between emotional upset, which is not physical harm, and shock is a grey area and so take shock out of this case and concentrate on the risk of bodily injury to Aimee involved in the affray, if you find was an affray, bearing in mind the violence that was inflicted on Aimee and her two girl companions. 
Causation. The Prosecution must prove that the affray was a substantial, that is to say more than an insignificant, cause of Aimee’s death, that actually all occurrences have more than one cause. The Prosecution do not have to prove that the affray was the sole or principle cause of death. The blows inflicted on Aimee were not the direct cause of her death as they would have been if she had suffered a direct and fatal brain injury or had bled to death. The Prosecution contend that the affray nonetheless caused Aimee’s death because it put Aimee in a very stressful situation that led to an adrenaline rush that stressed her heart to the point that it became overloaded, thereby triggering a ventricular fibulation.
The Prosecution rely on the evidence of Doctor Survana and Professor Milroy. Both of these medical experts said that in their opinion, it was probably the incident that caused the ventricular fibulation. They based this opinion on the history that Aimee had led an active and normal life right up to the incident and what happened during the incident and the closeness in time between the incident and Aimee’s collapse. The doctors accepted that it was possible that the incident was not the cause of the ventricular fibulation, and that Aimee died spontaneously on the night of the 7th of June. However, in their opinion as a matter of probability Aimee did not die spontaneously but because she had been the victim of the incident.
You do not have to accept the doctor’s opinions. It is entirely a matter for you whether you do so. Doctor Survana also thought that Aimee’s 109 metres run over rough grass and up a slope could itself stress the heart, but felt that it was not possible to separate out the contribution the run made to the death or the contribution made by the defendants conduct before the infliction of violence. Professor Miloy agreed that the run was the event most proximate to Aimee’s collapse and was therefore most likely to have been the precipitating factor in Aimee’s death. However, he remained of the view that it was the incident overall that caused Aimee’s death.
If you think that Aimee’s run stressed her heart, you should consider whether this means that the run breaks the chain of causation with the result that the affray was not a significant cause of death. When considering this, ask yourselves why it was that Aimee was running away, was it because she was still reasonably in fear of being attacked, or was it because she could see that the incident was over and she just wanted to get home as quickly as possible. If the reason was, or may have been the latter, you may think that the affray did not cause her death, it is a matter for you. If, however, you conclude that Aimee was still reasonably in fear of being attacked, and that running away was a reasonable thing to do, you may think that the affray was a significant cause of death. Again, it is a matter for you. The fact that it is possible that Aimee died spontaneously is something you must take into account, but it does not mean that you cannot be sure that the affray was a significant cause of death. Use your common sense, have regard to the probabilities and the evidence as a whole, and ask yourselves whether you are sure that the affray was more than an insignificant cause of Aimee’s death. If you are sure of this, the Prosecution will have proved causation in element 3. If you are not sure you must acquit all the defendants of manslaughter.”
40.	The first critical passage is: “…the actual infliction of violence on Aimee and her two friends is bound to be part of the affray, and you may well think that all reasonable and sober people would realise that that part of the unlawful act must have subjected Aimee to at least the risk of some physical harm…” (emphasis added).  In other words, the jury could aggregate the violence (and presumably the threats of violence) used against all the victims when considering whether the affray was a dangerous unlawful act as against Aimee.  The second critical passage is: “The Prosecution must prove that the affray was a substantial…cause of Aimee’s death…” (emphasis added).  As the judge stated at para [1](b) of his certificate of fitness for appeal, he directed the jury that it was not necessary to prove that the physical harm actually inflicted was a cause of Aimee’s death. His reference to physical harm was a reference to the assault by C on Aimee.  That is made clear by the wording of para [1](a) (see para 2 above).   
41.	Thus, in deciding whether any appellant had committed an unlawful act against Aimee which was dangerous in the relevant sense, the jury could take into account the violence inflicted on all three of the victims and not just that inflicted on Aimee.  It followed that the jury did not have to be sure that the assault on her by C was a cause of Aimee’s death; it was sufficient if the violence by all defendants on all three victims was causative of death.
42.	It seems that the judge reached the conclusion that this was a permissible approach on the basis of his understanding of section 3 of the 1986 Act.  As we have seen, section 3(1) provides that a defendant is guilty of affray  if he uses or threatens unlawful violence against another and his conduct is such as would cause a person of reasonable firmness to fear for his personal safety.  Subsection (2) provides that where 2 or more persons use or threaten the unlawful violence “it is the conduct of them taken together that must be considered for the purposes of subsection (1)”.  The words “for the purposes of subsection (1)” mean for the purposes of determining whether the defendant’s conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.  These words do not mean that the defendant is liable for the acts of violence or threatened violence of other persons.  Whether there is such liability depends on the application of the common law principles of liability of secondary parties for the consequences of actions carried out by a principal.  This point is reinforced by section 6(2) which provides that a person is guilty of affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.   It follows that a person is liable as a principal for affray for his intended acts or threats of violence or where he is aware that his conduct may be violent or threaten violence.  The statute focuses on the acts or threats of the individual participant and on his state of mind in relation to those acts or threats.  The “aggregation” permitted by section 3(2) is not for the purpose of making an individual participant liable for the acts and threats of other participants.  It is for the different, but important, purpose of determining whether a person of reasonable firmness present at the scene would be in fear for his personal safety.
43.	In his skeleton argument, Mr Watson gave a striking example to illustrate the fallacy of the judge’s approach.  Suppose 40 Arsenal football supporters emerge from a public house intent on violence.  They fortuitously encounter a group of 40 Tottenham Hotspur supporters emerging from a different public house, who are also intent on violence.  Violence ensues. All 80 are guilty of affray or possibly riot.  Now suppose that one of the fans strikes another foreseeing (even intending) some actual bodily harm.  The victim falls and strikes his head on the kerb.  He suffers a sub-dural haematoma from which he dies.  On the judge’s approach, not only is the assailant responsible for the fatal blow guilty of manslaughter, but the other 79 (including the fellow supporters of the deceased) are guilty as well.  Mr Myerson, who seeks to uphold the judge’s approach, accepts that it means that all 79 could be charged with manslaughter because, he submits, they all committed the criminal act which caused the death.  He also says, however, that it may be that in such a case a charge of manslaughter might not be in the public interest.   
44.	We consider that any analysis of the relationship between a public order offence like affray and manslaughter which leads to the conclusion that all 79 of the football fans involved in Mr Watson’s example would be guilty of  manslaughter raises serious doubts as to whether the analysis can be right.  In our judgment, it is plainly incorrect.  The reason why it is wrong is that the unlawful dangerous act which causes the deceased to die is not the affray or riot, but the assault committed by one fan.  Other participants would be guilty of manslaughter if they were liable for the assault as secondary parties on usual joint enterprise principles.  Otherwise, they could not be liable for the death and guilty of manslaughter: the acts of those who participated in the affray, but were not party to the assault, did not in any relevant sense cause the death.   
45.	We understood Mr Myerson to accept that, if C had not assaulted Aimee but in all other respects the facts had been no different from what occurred, none of the appellants would have been guilty of manslaughter.  He was right to do so, because as we have already explained, none of the appellants would have used or threatened unlawful violence which a sober and reasonable person would have recognised as subjecting Aimee to the risk of the physical harm which led to her death.  
46.	In the present case, the only dangerous act in the relevant sense was the assault by C on Aimee.  A punch to the face is a dangerous unlawful act.  If Aimee had fallen against a hard surface and suffered an injury from which she had died, C would have been guilty of manslaughter on a straightforward application of Church principles.  But in the circumstances of this case, Aimee’s death was not caused by injuries that were a foreseeable result of the assault in the sense that the risk of such injuries would have been recognised by a sober or reasonable person having the knowledge that the appellants had.  As we understand it, Mr Myerson accepts this.   The slight injuries caused by the assault cannot be said to have been a cause of her death.   That is why the judge did not direct the jury that it was necessary for them to be sure that the physical harm actually inflicted was a cause of her death before they could convict of manslaughter.
47.	It follows from the fact that (a) the only dangerous act perpetrated on Aimee (C’s punch) did not cause her death, and (b) the other acts and threats of violence used in the course of the affray were not dangerous in the relevant sense as against Aimee, that none of the appellants was guilty of manslaughter.   
48.	By way of postscript, we should say a word about “escape”. There are circumstances where the actus reus of a crime is completed by the act of the victim rather than that of the offender.  Thus, where the victim injures himself in a fall whilst attempting to escape from an attack by the offender, the latter may be regarded as having caused that injury.  Or take the case of the defendant convicted of assault occasioning actual bodily harm to his victim who was injured jumping from his moving car after he had assaulted her in that car: Roberts (1971) 56 Cr App R 95.  
49.	In his summing up, the judge directed the jury: “if, however, you conclude that Aimee was still reasonably in fear of being attacked and that running away was a reasonable thing to do, you may conclude that the affray was a significant cause of death.”  Mr Harrison and Mr Watson both submit that there was no evidence that Aimee was running away in order to escape from the possibility of further attack, rather than because she wanted to get home as quickly as possible.  They say that the judge should not have left that issue to the jury, since it was impossible for the jury to decide why she ran away.  Indeed, they say that there was no evidence that she was running away from her assailants: they were heading in the opposite direction and there was no actual or threatened violence present at the time when Aimee ran.  
50.	Mr Myerson did not rely on the death caused by the running away as analogous to the injury caused during the attempted escape in Roberts.  He did not advance the case as an “escape” case in that sense.  He does not submit that Aimee ran off in fear of being attacked or threatened with violence.  Rather, he submits that the running away was part of “one overall incident which comprises the necessary crime antecedent to the death.  Escape was not relied on.  It was simply part of the overall picture which the jury had to consider because the case involved the run uphill and that was the last thing Aimee did.” (see para 7 of Mr Myerson’s Additional Material).  Viewed in that light, it seems to us that the running away does not require any modification of what we have already said.  We do not understand Mr Myerson to submit that, if we reject his other arguments, the manslaughter conviction should be upheld by reason of the running away point.
 Conclusion on the appeal against conviction
51.	It follows that in our view the judge should have withdrawn count 1 from the jury at the close of the Prosecution case.  
52.	This is a most tragic case.  Aimee and her friends were the subject of an entirely unprovoked attack whilst they were taking a walk on a pleasant summer evening at a local beauty spot.  It was a thoroughly unpleasant attack accompanied by menace and bullying.  But the injuries caused to the three girls which we have described were slight.  None of the appellants intended to cause really serious harm to any of the victims, still less did they intend that Aimee should die.  No doubt, but for the affray Aimee would not have died when she did. It is understandable that Aimee’s family in particular, but no doubt others too, should think that the appellants are responsible for Aimee’s death.  In a sense they are.  As we have said, but for the affray, Aimee would not have died when she did.  But that is not sufficient to make them guilty of manslaughter.  There are those who believe that the definition of unlawful act manslaughter is too wide and catches within its net persons who should not be held criminally liable for another’s death.  The principle enunciated in Church is, however, clear and now well established as part of our law.  It means that a person who inflicts quite slight injury which unforeseeably leads to the death of the victim is guilty of the serious offence of manslaughter: in law, he is criminally liable for the death.  This principle must, of course, be loyally applied and without reservation. 
53.	For the reasons that we have given, to hold these appellants liable for the death of Aimee in circumstances such as occurred in this case would involve an unwarranted extension of the law.  In our view, such an extension would come close to saying that if X commits an unlawful act but for which Y would not have died, X is criminally liable for the death of Y.  That is not our law.  Our law requires that X commits an unlawful act which is dangerous in the sense that it is recognised by sober and reasonable persons as subjecting Y to the risk of some physical harm which in turn causes the death.  The only act committed against Aimee which was dangerous in that sense was C’s assault on her, but physical harm resulting from the assault itself did not cause Aimee’s death.  It must follow that none of the appellants was guilty of manslaughter.
Sentence
54.	We come to the applications for leave to appeal against the sentences for affray.   Field J imposed upon Carey an extended sentence, with a custodial term of 2 years and an extension period of one year (which was to be served concurrently with a sentence of detention for public protection with a minimum period of two years for the manslaughter offence)    He imposed upon C and F for affray sentences of a detention and training order (“DTTO”) for 18 months (to be served concurrently with a DTTO for 24 months for manslaughter).   We grant the applications in respect of the sentences for affray, and consider the appeals having quashed the convictions for manslaughter.   While we do not think that the court must or should leave entirely out of account that the offence led, albeit unintentionally and unforeseeably, to Aimee’s death, the sentences must be reconsidered on the basis that these offenders are not criminally responsible for Aimee’s death.
Carey
55.	Carey was born on 24 October 1986, and so she was aged 18 years when she committed this offence.   She had a previous conviction for an assault occasioning actual bodily harm which she committed in January 2001 at the age of 14 years.    That conviction arose out of an attack upon another girl whom Carey punched and kicked in the face, causing bruising to the face and body.    In 1999, at the age of 12 years, she received a caution for common assault, when she had joined in an attack on another girl and punched her.  She also had a conviction for receiving stolen goods and a caution for criminal damage.
56.	Affray is a “specified offence” within the meaning of section 224 of the Criminal Justice Act 2003.  The court must therefore consider whether there is, in the words of section 225(1), “a significant risk to members of the public of serious harm occasioned by the commission by [her] of further specified offences”.   Serious harm means “death or serious personal injury, whether physical or psychological”: section 224(3).   In Carey’s case, because of her previous conviction for assault occasioning actual bodily harm, which is also a specified offence, the court must assume that there is such a risk unless it considers that it would be unreasonable to do so, taking into account the nature and circumstances of the offences, any pattern of behaviour of which any of the offences form part and information about the offender: section 229(3).

57.	Field J concluded in light of the previous offences of assault that Carey had committed and her role in the violence on 7 June 2005 that the statutory presumption was not rebutted and that she was to be sentenced on the basis that there is a significant risk of serious harm to members of the public from her committing further specified offences.   Since he did so, the Court of Appeal, presided over by the Vice President, Rose LJ, has given judgment in Lang, [2005] EWCA 2864, in which the court considered the mandatory sentencing provisions in relation to the protection of the public from dangerous offenders in sections 224 to 229 of the 2003 Act.    The court emphasised first that the risk identified must be significant, more than a mere possibility, and secondly that the relevant risk is not that future offending will be serious but that the harm from future offending will be serious.  With regard to the statutory assumption in section 229(3), the court observed (at para 17(v)) that, “it will usually be unreasonable to conclude that the assumption applies unless information about offences, pattern of offences and the offender show a significant risk of serious harm from further offences”.  

58.	The court also said (at para 17(iv) that, “Repetitive violent …offending at a relatively low level without serious harm does not of itself give rise to a significant risk of serious harm in the future”.   Aimee’s death was an entirely unforeseeable consequence of the affray, and as far as the assessment of the risk that Carey presents is concerned, we consider that the assaults for which she previously had been sentenced and this offence of affray are the sort of offending that the Court of Appeal had in mind.   We can, like Field J, see in Carey’s offending something of a pattern of repetitive violent offending but it was, we consider, at a such a level that it does not in itself demonstrate a significant risk of serious harm from further offending.  

59.	The court must also take into account information about the offender which is before it, and a pre-sentence report about Carey was prepared.  She left school at the age of 16 with no formal qualifications, and is the mother of a son.  She is described in the pre-sentence report as having “difficulties with her alcohol use and her ability to manage her anger/aggression”.   

60.	The author of the pre-sentence report expressed the view that Carey “presents a significantly high risk of serious harm to the public, more specifically to young people who reside in Miss Carey’s locality”.   However, we note that in making this assessment, the author was not confining her consideration to “serious harm” within the meaning of the statute, but specifically referred to emotional as well as physical harm.  Mr Harrison made a number of criticisms of the report, which seem to us for the most part to be justified, although we recognise that it was written when Carey was to be sentenced for manslaughter as well as affray. Two points are particularly relevant to the author’s assessment of the risk that Carey presents.  First, the author drew upon the witness statements of prosecution witnesses for an understanding of the facts, and she apparently considered that because Carey did not acknowledge what was said in the statements, she was “minimising the extent of the violence that she administered” and that her remorse was “overshadowed by her reluctance to take full responsibility for her behaviour”.   She took this into account when assessing risk.  However, the author did not, as it seems, appreciate either that some of the evidence of prosecution witnesses departed from what was said in the statements, or that the acquittal of H indicates that the jury did not accept all the prosecution evidence. Secondly, the author of the report assessed Carey as presenting a “medium risk of reoffending”, referring, as we understand it, to the risk of future offences of any kind.   We have difficulty in understanding how the author moved from that view to conclude that she presents a “significantly high risk of serious harm to the public” from future offending. We can find nothing in the pre-sentence report that provides cogent or persuasive support for the view that Carey presents a high risk of serious harm to members of the public.   
61.	With the benefit of the guidance in Lang, we have come to a different conclusion from Field J and consider that it would be unreasonable to conclude from the information before us about this and previous offences and about Carey that there is a significant risk of serious harm to members of the public from further specified offences committed by her. We must reconsider her sentence for affray in light of that conclusion.
62.	We have no doubt that no sentence other than custody would be justified.   As we have already said, in ruling that there was a case to answer at what was, for practical purposes, the end of the prosecution case, Field J said this: “The defendants were acting in a group.  They had been drinking and would appear to be looking for a violent confrontation.  They picked on members of the public whom they did not really know and on whom, having followed them menacingly, they inflicted wholly unjustified, vicious physical violence, even if the assaults on the girls were over in about a minute and the violence was such that no significant injuries resulted”.  He had heard the evidence and we see no reason to doubt that description of what happened.   
63.	When considering the minimum period that Carey should serve in respect of manslaughter, Field J observed that Carey is older than C and F, and said this of her part in the offence: “You encouraged [C and F] to attack Aimee and her friends.  Aimee and her friends had done nothing to harm or provoke you.   You started the violence by striking James Delaney from behind, you then punched Shelley Robinson three times in the face causing her to fall to the ground and while she was on the ground you kicked her in the face twice and on top of her arm”. He also described her as the “principal” participant in the affray.  That assessment of Carey’s role could not be and has not been criticised.    We take into account that, although Carey did not plead guilty to affray, she did not unduly dispute the prosecution’s evidence at the trial, and she also showed some degree of candour when interviewed by the police.   Nevertheless, in view of her role in the affray and bearing in mind her previous offending, we have concluded that Carey’s sentence for affray should be two years’ custody.  
F
64.	11.	Field J concluded that that neither F nor C pose a significant risk of serious harm to the public from further offending, and we agree with him about that.   We also agree with his conclusion that they should both be sentenced to a DTTO for the offence of affray.   We have well in mind section 44 of the Children and Young Persons Act 1933 and have regard to the welfare of these offenders.   However, for the reasons that we have explained when determining considering Carey’s sentence, we conclude that the nature of this affray was such that it would, in the absence of quite exceptional circumstances, call for a custodial sentence.   
65.	The Judge summarised F’s part in the affray as follows: she “intimidated Aimee into handing over her charity wristband, then [she] joined in the attack by punching Gemma Doyle in the face, pushing her to the ground and whilst she was on the ground pulling her hair and hitting her across the face”.    

66.	F is 17 and that was her age at the time of the offence and at the time of her conviction.   She has no previous convictions, and it is clear that her behaviour of 7 June 2005 was quite out of character both from the pre-sentence report and from statements written for the court from people who know her.    The pre-sentence report described her as “extremely remorseful for what she has done” and assessed the risk of her re-offending in a similar way to be low.    Like Carey, while she did not plead guilty to affray, at trial she did not unduly dispute the prosecution’s evidence against her.
67.	Taking into account these considerations and the fact that there is no reason to suppose that F in any way instigated the violent behaviour, we have concluded that a DTTO of 18 months is too long.   Moreover, if we did not reduce F’s sentence having imposed a sentence of two years’ upon Carey, the sentences would not properly reflect their difference levels of culpability.    We reduce F’s DTTO to 12 months.
C
68.	We come to C’s sentence.   The judge’s summary of her part in the affray was this: she “pulled Aimee’s head back by pulling her hair and then punched her in the face”.    She is 15 years old, and that was her age at the time of the offence and of the trial and sentencing hearing; and she had no previous convictions for violence, but has two previous offences of minor dishonesty.  She was the last of the girls to join in the violence on 7 June 2005.   We have read a psychiatric report as well as a pre-sentence report about her.   There is no purpose in setting out her background in detail and it suffices to say that she has had a very difficult childhood, and she was seeing a psychiatrist before June 2005.   We accept that her expressed remorse for the death of Aimee is genuine.    The recommendation of the author of the pre-sentence report was a three-year supervision order with a condition that she comply with a 12 months’ intensive supervision and surveillance programme.
69.	C pleaded guilty to affray, and although her plea was recorded late, her intention to enter a plea to this charge was made clear at an early date.    Field J declined to reduce C’s sentence for affray to give her credit for her plea, his reason being that under the Powers of Criminal Courts Sentencing Act 2000, section 101(1) DTTO’s can be imposed for terms of 4,6,8,10,12, 18 and 24 months, and, as we understand his sentencing remarks, he considered that it was inappropriate to reduce a sentence of 18 months to one of 12 months to reflect the plea.   For the reasons that we have explained when considering F’s appeal against sentence, we should not have thought it appropriate even in the absence of the plea to impose upon C a sentence of a longer DTTO than 12 months and so there is more flexibility about what reduction can be made by way of a discount for her plea. We consider that she should have been given credit for it, and do not consider that Field J had proper reason not to do so: see Kelly [2002 1 Cr App R(S) 11 (at 40), [2001] EWCA 1030, March, [2002] 2 Cr App R(S) 98 (at 448), [2002 EWCA 551.  In view of her plea, therefore, C’s sentence in any case should be shorter than that of F, and, but for one matter, we would have imposed a DTTO of 8 months.  However, at the hearing before us on 12 January, it was explained that C is pregnant and is due to give birth around the beginning of February 2006.   We were told that at the Secure Training Centre where she is serving her sentence there are no maternity facilities and on the ordinary course she would have been transferred, at the age of 15 years, to a women’s prison to give birth.    In these exceptional circumstances, we granted her bail on 12 January 2006 so that the baby might be born outside prison.    She had served a period of detention of something approaching 3 months.   We believe that it would be wrong to impose a sentence that would mean her returning to custody for a short additional period, and that would be the consequence of a DTTO of 8 months or even of 6 months.   In these exceptional circumstances, we have concluded that we should accept the recommendation of the pre-sentence report and make a three-years supervision order with the suggested condition of a 12 months’ intensive supervision and surveillance programme.