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A definition of Affray
3 (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(6)[repealed].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.
-Section 3 Public Order Act 1986 (“POA 1986”)
What has to be proved and by whom?
In all criminal cases the Prosecution (“P”) has to prove the elements of the offence to the criminal standard-in other words, they must make the court “satisfied so that it is sure” that the Accused (“A”) is guilty. Sometimes this formula is expressed as “beyond all reasonable doubt”.
Firstly P has to prove that A, or A and anyone acting with him “used or threatened unlawful violence towards another”-ss (1).The threat or violence has to be more than just words as ss(3) makes plain. If A simply shouted threats, this would not amount to an Affray but it might amount to an assault or a less serious public order offence. Always be alive to the fact that whilst your client may have a defence to a charge-or an element of the crime may not be capable of proof-that your client’s actions may amount to a different crime altogether. This means that if he answers questions in interview under caution in order to deny the offence for which he is arrested, he may inadvertently admit another. Thus is often an issue with public order offences, assaults and offences under the Theft Acts. How you deal with the issue will depend on the advantages and disadvantages of answering police questions and the benefits or risk of going No comment.
“Used or threatened unlawful violence”
Proving the use of unlawful violence is normally straightforward as the three words carry their ordinary everyday English meaning. The use of the word “unlawful” signifies that A could be threatening violence e.g. he is seen waving a cricket bat at B and shouting at him. At first sight hits looks like unlawful violence But if A has just found B breaking into his house, and A is chasing him off, the violence, without more, is unlikely to be viewed as unlawful. So A may have a defence if he acts out of self-defence, to protect another or to protect his property. He has what the law calls a “lawful excuse” which justifies his actions.
“Threatening” is a little less clear cut. Often it will be obvious from the surrounding circumstances that A’s conduct is threatening as the ordinary everyday definition of the word will suffice. But in I v DPP; M v DPP; H v DPP [2002] 1AC 285 HL, the House of Lords looked critically at what might or might not amount to a threat.
Here 3 youths had petrol bombs hidden under clothing as they walked to confront a rival gang. There were no circumstances making their actions threatening here. That is not to say that carrying a petrol bomb will never be threatening. Clearly if it is on show and accompanied by actions suggesting it may be used, this will fulfil ss (1).The suspect could be charged with a variety of other offences if ss (1) is not made out.
The actions of “two or more persons”.
Affrays are regularly committed by a group of people-for example football fans running wild in the town centre after losing the match or an angry group of people becoming aggressive after being refused entry to a club. Where two or more people are alleged to be involved in the offence, the law requires the court to look at the actions of the group as a whole when deciding whether the conduct overall amounts to the use or threat of unlawful violence. Group actions were examined by the court of Appeal in NW below. Whilst this is a case dealing with the more serious offence of Violent Disorder under S2 POA 1986, the principle is the same save in that section, the words “present together “are used rather than the wording at s3(2)POA 1986.
R v NW [2010] EWCA Crim 404
When looking at the activities of a group, the court must bear in mind the purpose of the legislation which is to protect ordinary people going about their business from being caught up in disorder which may cause them to fear for their safety. The people forming the group do not need to have planned their behaviour. They need not even know each other. What counts is that they are present at the same time and each is using or threatening unlawful violence. The court is not required to have regard to how or why the violence erupted when deciding whether the individuals making up the group acted unlawfully-although this may be of relevance later in the trial, during the defence case, if a person asserts they were acting lawfully.

If you are asked to advise a client on Affray, you need to bear in mind the overall picture likely to be put before the court where two or more people are involved. The mere fact a suspect says he didn’t know the other offenders or was dragged into the fight is not going to afford him a defence if his behaviour can be construed as threatening unlawful violence.

“A threat cannot be made by words alone”
This requirement is often misunderstood by police officers. Be alert to this interview when it may be suggested that your client is guilty of affray because of what he said. Equally remember that whilst he may not be guilty of Affray, he may be guilty of something else. However where the words are accompanied by a deed-a gesture or some other act, the prosecution will succeed on this point. In R v Dixon [1993] CrimLR 579 CA, D set his dog on police officers shouting “Go on, go on!” to the dog. R’s actions went beyond mere words. Likewise driving a car at another car with people in it went beyond words –R v Thind [1999] Crim LR 842 CA.
“No person of reasonable firmness need actually be, or be likely to be, present at the scene.”
The presence of a person of reasonable firmness is probably the most troublesome feature of Affray and it tends to be where the police and prosecution get the law wrong most often. The Act does not always mean what it says and it is necessary to look at decisions in the higher courts to understand the point better.
“Reasonable firmness” is not defined by the Act and it is a question of fact for the court to determine what amounts to a person of reasonable firmness and whether they did or would have -had they been present-feared for their personal safety. A professional boxer is unlikely to be a person of reasonable firmness as he is probably more confident in an aggressive situation than say an elderly, nervous person. The elderly, nervous person is unlikely to be of reasonable firmness because of their nervousness and possibly, age.
S3 (4) doesn’t always mean there has to be someone of reasonable firmness present at the time of the Affray so the “victim” can be a hypothetical one. This often leads the police to ask questions such as “What would you have thought had you been there?” or “What do you think your mum would have thought if she’d seen all of that?”These questions are best left unanswered by the suspect –an answer may be seen to amount to a concession or confession and the point is primarily one for the court to decide. An Adverse Inference under S34 CJPOA 1994 is unlikely to arise as here the suspect is being asked for an opinion.S34 relates to facts relied upon, not opinions.
Below are a series of decisions from the higher courts dealing with this person-
R v Sanchez [1996] Crim R 572
The “victim” cannot be the person of reasonable firmness for the purposes of S3 (4).
This is an important point-often in a domestic situation, where one party is believed to have assaulted the other but no-one is willing to give a statement, the police try to circumvent the lack of witness statement by charging the suspect with Affray. The decision in Sanchez means such a prosecution is unlikely to succeed because the person they think was assaulted cannot be the person of reasonable firmness under S3(4).
R v Plavecz [2002] Crim LR 837 CA
Where A has been assaulted (S39 CJA 1988) and no-one else has been threatened or put at risk of assault, there is no affray. The offence has been directed specifically to A and thus it cannot be said B or anyone hypothetically present at the scene could have feared for their personal safety.
This case is useful for defence lawyers. The CPS sometimes charge a Common Assault and an Affray arising out of the same incident and with the same victim for both charges. This approach is wrong according to Plavecz. You are unlikely to be received positively if you make representations on this point to a Custody Sergeant but you can flag it up for the lawyer dealing with the case in court.
Further, where A and B are arguing or fighting, and C passes by, C will not be a victim for the purposes of S3(4) as the conduct is not embracing him It is a straight one-on-one fight between A and B and poses no risk to C or anyone else.
Leeson v DPP [2010] LS Gazette April 29 ,16, DC
This is the most recent case on ss (4) and illustrates the problem neatly.
W threatened to kill her boyfriend, H, with a knife when they were in the bathroom at home. She was quite calm about it. H took the knife from her without difficulty. There was no-one else in the house. No-one was expected.
W was convicted of Affray. On appeal to the High Court, her conviction was quashed. It could be not be said that there was any prospect of a hypothetical person of reasonable firmness being afraid for his safety. This was a momentary event, directed purely at H. No-one but Wand H were involved, the incident took place in private and it could not have invoked fear in any “victim”.
The court re-iterated that the purpose of S3 is to protect passers- by from the fear of unlawful violence and that merely proving unlawful violence has occurred is not enough to succeed on a charge of Affray.

The court could also have quashed the conviction on the grounds that, following Plavecz above, this violence was one-on-one with no possibility of anyone else being drawn into it.
“Affray may be committed in private as well as in public places”
Thus part of the Act speaks for itself. The knack is to remember which Public Order offences can be committed in public only, and which can also be committed in private.

Mode of trial and sentence
Affray is triable either –way so it could be heard in either the Magistrates’ Court or the Crown Court. A client need not be advised on venue at the police station as venue will rarely have any bearing on your advice there. You will need proper disclosure from the CPS at the first hearing in court before venue or plea can be considered properly.
The maximum sentence on conviction in the Magistrates’ is 6 months’ imprisonment and £5,000 fine. In the Youth court the maximum sentence is 2 years’ detention .In the Crown Court a defendant could face a maximum of 3 years’ imprisonment and /or an unlimited fine. The Sentencing Council has produced guidelines on sentence for Affray for use by magistrates and this will also help you to assess whether a case is likely to be sent to the Crown Court for trial. Go to http://www.sentencing-guidelines.gov.uk to look up sentencing guidelines.

Defences to Affray
An accused will have a defence if he can show his actions were lawful as set out earlier. You will normally want to establish this in any interview under caution to avoid any Adverse Inferences later on at trial. In a compelling case, the prosecution may be prepared to release without charge if they accept they cannot disprove the defence. Remember, it is for the prosecution to satisfy the court so that it is sure of the Accused’s guilt. If he wishes to put forward a defence at trial he will either have to prove it to the evidential burden –that is simply give or call evidence to explain his defence or, in some cases, he may have to satisfy a court on the legal burden (or on the balance of probabilities as it is also described) that his defence is established. The prosecution must then make the court satisfied so that it is sure the defence is not made out or doesn’t apply.