Section 3 of the Public Order Act 1986 creates the offence of Affray. Having been asked many times when arresting people for this offence what it means I shall start this post with the definition which reads:
“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”.
I will examine this definition in more detail shortly and before I do I have attached a short video that shows a good example of what an Affray is. When you watch it think about the definition above. In the video you will see a separate Criminal Damage offence but for the purposes of this Blog we will ignore that.
In this video the bus driver challenges a passenger for not having the correct fair. As a result the passenger becomes violent and starts to attack the safety screen. If you watched properly you will have seen the gentleman in the black jacket stood behind the suspect at the start of the film. This man was stood waiting to get on the bus and to start with was stood fairly close to the bus door. When the suspect became violent the man backed off and created distance.
The offence of Affray is not here to protect the people involved in the violent incident. It is here to protect the other people present (e.g the passer by in the street, the customers in a pub etc) hence the wording ” cause a person of reasonable firmness present at the scene”. In causes where one person threatens another other offences such as Section 4 Public Order (Fear or Provocation Of Violence) may apply.
Of note is the fact that violence does not HAVE TO BE USED to complete this offence. Violence must be used or THREATENED.
The offence of Affray needs a number of elements to be complete and we will examine them now. The first element being:
A PERSON - As in all offences you need to have an offender. This can be a single person and where you have for example two people it is their conduct together that is considered.
USES OR THREATENS UNLAWFUL VIOLENCE – The offender must undertake a physical violent act as in the bus video OR threaten violence. In the case of threatening violence words alone are not sufficient.
TOWARDS ANOTHER – The violence being used or threatened must be directed towards a person e.g the victim.
PERSON OF REASONABLE FIRMNESS PRESENT AT THE SCENE – This is the average person(s) who are present at the scene at the time. They may be passers by, customers in a pub etc. Remember the man in the black jacket in the bus video? Although for the purposes of this offence the reasonable person present at the scene does not actually have to be present. If the violence or threat of violence is sufficient as WOULD cause that person to fear for their “personal” safety the offence is still complete.
TO FEAR FOR HIS PERSONAL SAFETY – The person of reasonable firmness must fear that their personal safety is at risk. In the bus video the man in the black jacket stepped back from the aggressive man. This act is sufficient to prove that he “feared” for his safety and although we cannot ask that man in person I am sure he would say something along the lines of he feared being punched or hit etc. I earlier wrote that the person of reasonable firmness does not have to be present. Where this is the case if the violent act would cause someone to fear for their safety the offence is still complete.
Affray can be committed in a public or private place and the violence cannot be directed towards property. Where a person makes threats against property you should consider other offences such as Threats To Cause Criminal Damage (Section 2 Criminal Damage Act 1971).
Affray carries a Statutory power of arrest as this offence can be tried either way. Punishment can lead to up to imprisonment and / or a fine.