What is Affray?

 

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Created on June 28, 2022

What is Affray?

The offence of Affray is designed to protect people in public places from fear of unlawful violence. For example, if two groups of people were fighting with weapons in the street, there is a real possibility that other members of the public would be present and that they would fear for their safety as a result of the groups’ actions.

Whereas, if threats were made by one person to another inside their private home and there was no possibility of a hypothetical bystander, this situation is unlikely to amount to an Affray.

It is the hypothetical person who must be in fear, not the party who had violence threatened or used against them. For this reason, offences of Affray will often involve fights which spill into the street, gang violence or where weapons are brandished against the police. Simply put, it is situations where there is no obvious victim, or where the party in need of protection is the general-public.

Affray is often not clear cut and requires careful attention  to avoid over criminalisation.

Why would I be charged with Affray?

In order to be convicted of this offence the prosecution must prove that you used or threatened unlawful violence towards another.  It must be shown that your actions would cause a reasonable person, present at the scene, to fear for his personal safety.

You can be guilty of this offence by using unlawful violence or simply by threatening unlawful violence, provided the other conditions apply.  However, for this offence, a threat cannot be made by words alone.  It must be shown that you intended to use or threatened violence or that you were aware that your actions may be violent or threaten violence.

It is not necessary for the “reasonable person” to actually be present.  In other words, the reasonable person can be hypothetical.  However, the use or threat of violence does need to have been directed towards another person (and not property).  This offence can be committed in a private place as well as a public place.

Any act done in reasonable self-defence is not unlawful.

What is the sentence for Affray?

Affray is an either way offence, meaning it can be dealt with in either the Magistrate’s or the Crown Court.

Affray carries a maximum sentence of three years imprisonment when tried in the Crown Court. In the Magistrates’ Court, the maximum custodial sentence is twelve months and a fine.

What is the difference between Affray and Assault occasioning ABH or GBH?

Both grievous and actual bodily harm usually require the complainant to sustain at least some level of physical injury. A charge of Affray carries no such requirement, but physical injury could be an aggravating factor.

Whilst Affray carries a potentially lower sentence than assault offences, it is also more onerous in that violence need only be feared by a person who does not exist – this person is purely a legal fiction and so Affray can be a difficult allegation to understand.

How can we help?

At Old Bailey Solicitors we have years of experience representing clients accused of Affray, explaining the law and managing cases so as to avoid over criminalisation. If you have been accused of Affray please get in contact with our team of experts on 0207 8464 999 or email us at [email protected]

 

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