Regina v Button; Regina v Swain: HL 1966

An affray may be carried out on private premises as well as in public places.
Lord Gardiner LC spoke of the revival of the ancient offence of affray, saying: ‘It was further argued that no practical purpose is served by re-establishing the law relating to affray, since it could only lead to the multiplication and overlapping of charges. Where a charge of affray could lie, it is said, so too would a charge of assault, and thus the latter charge suffices to protect the public. The respondent, however, contended that evidence is difficult to obtain in the melee of disturbance and fighting and that there are situations in which it would be possible to convict of affray on evidence that would not justify a conviction of assault. The Court of Criminal Appeal took the view that the offence of affray was a useful part of the criminal law in modern times. I agree with that view.’
As to the rule of stare decis: ‘In Corpus Juris Secundum, a contemporary statement of American Law the stare decisis rule has been stated to be a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. It has been stated that this rule is based on expediency and public policy and should be strictly adhered to by the courts. Under this rule courts are bound to follow the common law as it has been judicially declared in previously adjudicated cases and rules of substantive law should be reasonably interpreted and administered. This rule has to preserve the harmony and stability of the law and to make as steadfast as possible judicially declared principles affecting the rights of property, it being indispensable to the due administration of justice, especially by a court of last resort, that a question once deliberately examined and decided should be considered as settled and closed to further argument. It is a salutary rule, entitled to great weight and ordinarily should be strictly adhered to by the courts. The courts are slow to interfere with the principle announced by the decision, and it may be upheld even though they would decide otherwise were the question a new one, or equitable considerations might suggest a different result and although it has been erroneously applied in a particular case. The rule represents an element of continuity in law and is rooted in the psychologic need to satisfy reasonable expectations, but it is a principle of policy and not a mechanical formula of adherence to the latest decision however recent and questionable when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience.

Lord Gardiner LC
[1966] AC 591
England and Wales
Cited by:
CitedGnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.467710