Ernest Meissonier, The Brawl, 1855
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In many legal jurisdictions related to English common law, affray is a public order offence consisting of the fighting of one or more persons in a public place to the terror (in French: 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 for assault, unlawful assembly, or riot; if so, it is for one of these offences that they are usually charged.[1]

United Kingdom

England and Wales

The common law offence of affray was abolished[2] for England and Wales[3] on 1 April 1987.[4] Affray is now a statutory offence that is triable either way. It is created by section 3 of the Public 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 [Repealed]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 on conviction on indictment to imprisonment for a term not exceeding 3 years or a fine or both, or on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both.[5]

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constable could arrest without warrant anyone he reasonably suspected to be committing affray, but that subsection was repealed by paragraph 26(2) of Schedule 7 to, and Schedule 17 to, the Serious Organised Crime and Police Act 2005, which includes more general provisions for police to make arrests without warrant.

The mens 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.[6]

The offence of affray has been used by HM Government to address the problem of drunken or violent individuals who cause serious trouble on airliners.[citation needed]

In R v Childs & Price (2015),[7][8] the Court of Appeal quashed a murder verdict and replaced it with affray, having dismissed an allegation of common purpose.

Northern Ireland

Affray is a serious offence for the purposes of Chapter 3 of the Criminal Justice (Northern Ireland) Order 2008.[9]

Australia

In New South Wales, section 93C of Crimes 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.[10] 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.[11] The maximum penalty for an offence of affray contrary to section 93C is a period of imprisonment of 10 years.[12]

In Queensland, section 72 of the Criminal Code of 1899[13] defines affray as taking part in a fight in a public highway 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 English Criminal 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."[14]

India

The Indian Penal Code (sect. 159) adopts the old English common law definition of affray, with the substitution of "actual disturbance of the peace for causing terror to the lieges".[1]

New Zealand

In New Zealand affray has been codified as "fighting in a public place" by section 7 of the Summary Offences Act 1981.[15]

South Africa

Under the Roman-Dutch law in force in South Africa affray falls within the definition of vis publica.[1]

United States

In the United States, the English common law as to affray applies, subject to certain modifications by the statutes of particular states.[1][16]

See also

References

  1. ^ a b c d "Affray", Encyclopædia Britannica, 1911
  2. ^ The Public Order Act 1986, section 9(1)
  3. ^ The Public Order Act 1986, section 42
  4. ^ The Public Order Act 1986 (Commencement No. 2) Order 1987, article 2 and Schedule (1987/198 (C. 4))
  5. ^ Digitised copy of section 3 of the Public Order Act 1986 from Legislation.gov.uk.
  6. ^ The Public Order Act 1986, section 6(2)
  7. ^ Pattinson, Rob (25 February 2015). "Gerard Childs and Stephen Price cleared of Prescot retail park murder of Jonathan Fitchett on appeal". Liverpool Echo. Trinity Mirror Merseyside. Retrieved 18 September 2016.
  8. ^ R v Childs & Price 2015: as yet unreported
  9. ^ The Criminal Justice (Northern Ireland) Order 2008, article 12(2) and Schedule 1, paragraph 5.
  10. ^ See also Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854 (25 August 2005) AustLII
  11. ^ Crimes Act 1900 (NSW) s 93D(2) AustLII
  12. ^ Crimes Act 1900 (NSW) s 93C(1) AustLII
  13. ^ Schedule 1 to the Criminal Code Act 1899 (Qld)
  14. ^ "Criminal Code Act 1899", retrieved 22 July 2009 from the website of the Office of the Queensland Parliamentary Counsel
  15. ^ Section 7. Fighting in public place in Summary Offences Act 1981. legislation.govt.nz13 January 1981
  16. ^ Bishop, American Criminal Law 8th ed., 1892, vol. i. sec. 535

 This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Affray". Encyclopædia Britannica (11th ed.). Cambridge University Press.

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