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In many legal jurisdictions related toEnglish common law,affray is a public order offence consisting of the fighting of one or more persons in a public place to the terror (inFrench:à l'effroi) of ordinary people. Depending on their actions, and the laws of the prevailing jurisdiction, those engaged in an affray may also render themselves liable to prosecution forassault,unlawful assembly, orriot; if so, it is for one of these offences that they are usually charged.[1]
InNew South Wales, section 93C ofCrimes Act 1900 defines that a person will be guilty of affray if he or she threatens unlawful violence towards another and his or her conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.[2] A person will only be guilty of affray if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.[3] The maximum penalty for an offence of affray contrary to section 93C is a period of imprisonment of 10 years.[4]
InQueensland, section 72 of the Criminal Code of 1899[5] defines affray as taking part in a fight in a publichighway or taking part in a fight of such a nature as to alarm the public in any other place to which the public have access. This definition is taken from that in the EnglishCriminal Code Bill of 1880, cl. 96. Section 72 says "Any person who takes part in a fight in a public place, or takes part in a fight of such a nature as to alarm the public in any other place to which the public have access, commits a misdemeanour. Maximum penalty—1 year’s imprisonment."[6]
InVictoria, Affray was a common law offence until 2017, when it was abolished and was replaced with the statutory offence that can be found under section 195H of the Crimes Act 1958 (Vic). The section defines Affray as the use or threat of unlawful violence by a person in a manner that would cause a person of reasonable firmness present at the scene to be terrified. However, a person who commits this conduct may only be found guilty of Affray if the use or threat of violence was intended, or if the person was reckless as to whether the conduct involves the use or threat of violence. If found guilty, the maximum penalty that may be imposed for Affray is imprisonment for 5 years or, if at the time of committing the offence the person was wearing a face covering used primarily to conceal their identity or to protect them from the effects of crowd-controlling substances, imprisonment for 7 years.[7]
TheIndian Penal Code (sect. 159) adopts the old English common law definition of affray, with the substitution of "actual disturbance of thepeace for causing terror to thelieges".[1]
InNew Zealand affray has been codified as "fighting in a public place" by section 7 of theSummary Offences Act 1981.[8]
Under theRoman-Dutch law in force inSouth Africa affray falls within the definition ofvis publica.[1]
Thecommon law offence of affray was abolished[9] forEngland and Wales[10] on 1 April 1987.[11] Affray is now a statutory offence that istriable either way. It is created by section 3 of thePublic Order Act 1986 which 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 subsection (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 in public places.
- (6) ... [Repealed]
- (7) A person guilty of affray is liable onconviction onindictment to imprisonment for a term not exceeding 3 years or a fine or both, or onsummary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding thestatutory maximum or both.[12]
The term "violence" is defined by section 8.[clarification needed]
Section 3(6) once provided that a constable could arrest without warrant anyone he reasonably suspected to be committing affray, but that subsection was repealed by paragraph 26(2) of Schedule 7 to, and Schedule 17 to, theSerious Organised Crime and Police Act 2005, which includes more general provisions for police to make arrests without warrant.
Themens rea of affray is that 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.[13]
The offence of affray has been used byHM Government to address the problem of drunken or violent individuals who cause serious trouble onairliners.[citation needed]
InR v Childs & Price (2015),[14][15] the Court of Appeal quashed a murder verdict and replaced it with affray, having dismissed an allegation of common purpose.
Affray is a serious offence for the purposes of Chapter 3 of theCriminal Justice (Northern Ireland) Order 2008.[16]
In the United States, the English common law as to affray applies in states which recognizecommon law offences, subject to certain modifications by thestatutes of particular states.[1][17]
This article incorporates text from a publication now in thepublic domain: Chisholm, Hugh, ed. (1911). "Affray".Encyclopædia Britannica (11th ed.). Cambridge University Press.