Affray

Question 1

Q: What is the principal piece of legislation that deals with public order?

Answer 1

Public Order Act 1986

Question 2

Q: What are the 3 associated offences in the POA 1986?

Answer 2

1: Riot- s1
2: Violent Disorder- s2
3: Affray- s3

Question 3

Q: What is affray?

Answer 3

S3 Public Order Act 1986
(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.

Question 4

Q: What type of offence is affray?

Answer 4

Triable either way
3 years’ imprisonment and/or fine on indictment

Question 5

Q: What is ‘violence’ for the purposes of affray?

Answer 5

S8
Violent conduct towards persons, rather than violence towards property.
It is not restricted to conduct causing or intended to cause injury.

Question 6

Q: How does s8B broaden the definition of ‘violence’?

Answer 6

S8B
Violence includes any other violent conduct.
Eg: throwing at/towards a person a missile capable of causing injury that does not hit or falls short.

Question 7

Q: Is there a need to show that anyone has been hurt?

Answer 7

No!
Eg: throwing a stone towards another may be sufficient, even if the stone misses or goes nowhere near them

Question 8

Q: What does s3(3) tell us about when someone threatens unlawful violence?

Answer 8

For the purposes of this section a threat cannot be made by the use of words alone.
Threatening language is not enough, there must be some form of action or gesture towards D.
This may be as simple as shaking a fist, or brandishing a stick or using a dog to growl at someone.
Words AND actions together are sufficient.

Question 9

Q: Does the violent conduct/threat of violence need to be directed towards a person?

Answer 9

Although no one needs to be injured by the act, the violent conduct or threat of violence needs to be directed towards an actual person.
There needs to be a victim- the violence or threat of violence must be directed towards a real per-son or persons who are present at the scene at the time the threat is made.
Making threats towards an empty property or where the person to whom the threats is made is not present, there will be no offence

Question 10

Q: Does the violence or threat of violence have to be unlawful?

Answer 10

If they are acting in self-defence/to defend another or to prevent crime or carry out a lawful citi-zens arrest, there is no affray.
Those are all potential justifications for violence and would make it lawful.
If the violence used is lawful in the circumstances, then they will not commit an affray.

Question 11

Q: How many offenders must there be for an affray?

Answer 11

1! It does not require a group of offenders.
It could be committed by one person behaving violently towards another, provided that his use or threat of violence would cause a person of reasonable firmness to fear for his personal safety.

Question 12

Q: What is this hypothetical bystander test?

Answer 12

This test ensures that it covers cases where there is a use of violence or threat of violence which would make reasonably firm minded members of the public, if they happen to be there at the scene, frightened that they themselves might be in danger of being hurt.
It is about out of control violence that threatens the public! It must be the kind of violence that would make an ordinary person, if they were there, frightened for themselves.
CPS would not be interested if the risk was a passing concern and there was no risk of serious injury.

Question 13

Q: Does the person of reasonable firmness have to be present?

Answer 13

S3(4)
No person of reasonable firmness need actually be, or be likely to be, present at the scene.

Question 14

Q: Does the victim themselves have to be frightened?

Answer 14

It doesn’t matter that the actual victim is frightened or not. The offence will still be made out.
The question is about whether an ordinary person would be frightened by it.

Question 15

Q: What 3 people does affray require us to consider?

Answer 15

1: Offender- using or threatening unlawful person (real person, present at scene)
2: Victim- person towards whom the unlawful violence is directed, they do not need to be hurt or frightened by the violence (real person, present at scene)
3: Hypothetical bystander- represent the correct standard of violence, type of violence that would have frightened an ordinary person if they had been there (imaginary person, not present at scene)

Question 16

Q: What if the accused is one of a number of people who use or threaten unlawful violence?

Answer 16

In deciding whether the person of reasonable firmness present at the scene would be caused to fear for his personal safety, it is the conduct of the entire group taken as a whole that counts and so there is no need in such a situation for the court to attribute individual roles to the participants

Question 17

Q: What did the case of Sanchez clarify?

Answer 17

The hypothetical bystander must be concerned for his own safety and not the safety of someone else.
D was convicted of affray where she lunged at her boyfriend with a knife in a car park. He deflect-ed the blow and ran away. She was charged with and originally convicted of affray.
Her appeal succeeded- it is the hypothetical of reasonable firmness that must be frightened for themselves. It is not about whether the actual victim was frightened! Act of violence was directed exclusively at the boyfriend and was not ‘out of control’ violence. No immediate risk to anyone else.

Question 18

Q: Can affray take place in private too?

Answer 18

S3(5) Affray may be committed in private as well as in public places

Question 19

Q: What if the likelihood of a person being present at the scene is unlikely?

Answer 19

Leeson 2010
Woman had issued a drunken threat to kill her long-term partner while holding a knife in an unoc-cupied house. She held a knife in her hand (did not lunge towards him) and said ‘I am going to kill you’.
Court held that there was no possibility of hypothetical bystanders fearing for their safety.
Where the likelihood of a hypothetical person of reasonable firmness being present is low this element of the offence will not be satisfied.
Woman was not out of control or brandishing the knife around. This was a domestic style incident like Sanchez.
If a hypothetical bystander would have been there, it is unlikely they would have feared for their own personal safety. The threat was directed towards a specific person and not an indiscriminate threat to anyone in the vicinity.

Question 20

Q: Examples of when incidents are not affray

Answer 20

1: A fight between two people arising out of a personal quarrel, where violence is focused solely and exclusively on the other person, without any danger of involvement from others, is unlikely to amount to affray

Question 21

Q: What is the MR of affray?

Answer 21

Intention or recklessness.
D must be shown to have intended to use/threaten violence or to have been aware that his con-duct may have been violent (s6(2)).

Question 22

Q: What if D claims he was too intoxicated to know what he was doing, too drunk to form intention or too drunk to be aware that his conduct may have been violent?

Answer 22

Applies to all offences under 1986 Act.
S6- mental element
(5) For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment.
No defence of intoxication- he would be treated as if he was sober.

Question 23

Q: When can D rely on the intoxication defence?

Answer 23

D will have to prove that the intoxication was not self-induced- eg: his drink was spiked or it resulted only from some form of medication.
It does not have to be prescribed- it could be over the counter medication or off the shelf in a supermarket.

Question 24

Q: What must D need to prove if he argues that his reaction was caused by medication?

Answer 24

If D tries to argue the medication point, his intoxication must result only from medication and not from the mixing of medication or other form of intoxicant (eg: alcohol)
Intoxicants includes drugs, alcohol and other means.

Question 25

Q: Summary of affray

Answer 25

Under s3 of 1986 Act, it must be proved that a person has used or threatened unlawful violence towards another and their conduct is such that it would cause a person of reasonable firmness, had such person been present at the scene, to fear for their own personal safety.
- The accused must have intended to use or threaten unlawful violence or have been aware that their conduct may be violent or may threaten unlawful violence
- If they claim to be affected by intoxication, that would only assist them if the intoxication is not self-induced unless it resulted solely from medication
- The threat cannot be by words alone
- Violence does not include violence against property alone
- The offence may be committed in a public or private place (violence cannot be a domestic style incident directed purely at a particular person)

Question 26

Q: What does CPS guidance state about the type of conduct that would be appropriate for a s3 charge?

Answer 26

• A fight between 2 or more people in a place where members of the general public are pre-sent eg: restaurant or street (with a level of violence such as would put them in substantial fear, as opposed to passing concern for their safety even though fighting is not directed towards them)
• Indiscriminate throwing of objects towards a group of people in circumstances where serious injury is caused or is likely to be caused
• The wielding of a weapon of the type or in a manner likely to cause people substantial fear for their safety