What is an affray?8 December 2021
An affray is a public order offence which involves either the use or threat of violence by a person or group of people against another person. The offence is capable of being committed in both public and private places.
To be guilty of an affray, a person must have:
- Used or threatened unlawful violence towards another person; and,
- The violence or threat of violence would have caused a person of reasonable firmness who was at the scene to fear for their own personal safety.
Threatened unlawful violence for the purposes of affray cannot be established by the use of words alone. In addition, the offence does not require a person of reasonable firmness to be actually present or likely to be present at the scene.
It is important to note that if an affray is committed in the company of other people, then the court will consider the conduct of the group collectively. This means that the offence of an affray may still apply to a member of a group who committed an affray even where their involvement was less serious than other members.
What are the penalties associated with an affray offence?
If you are found guilty of an affray, you will be liable for up to 10 years imprisonment.
Are there any defences to an affray offence?
There are several defences to criminal offences, some of which may be relied upon where you have been charged with an affray. The two defences which may be available to the offence of affray are self-defence and duress.
The defence of self-defence may be relied on where a person carries out conduct constituting an offence, such as affray, in self-defence. Self-defence can only be relied on as a defence if an offender genuinely believes that the conduct carried out in self-defence was necessary.
The defence of duress may be relied on where a person carries out conduct which constitutes an offence, such as an affray, because they were subject to threats of death or serious injury.
Why BSM Lawyers
Being charged with an affray offence is a very serious matter and being found guilty of this offence can have a significant impact on your future. This is why it is important that you seek expert legal advice if you are charged with an affray offence.
Brander Smith McKnight’s criminal defence lawyers have extensive experience in relation to the offence of affray.
Our criminal defence team can provide you with expert assistance in defending yourself against an affray offence in court.
When is a person likely to be charged with the offence of affray?
It is common for police to charge a person with the offence of affray it they are suspected or known to have been involved in incidents of public fighting.
What is the difference between an affray and an assault?
Assault and affray offences share some similarity but are different in several ways.
First, an affray is a public order offence and assault comes within the definition of “offences against the person”.
Second, there is no aggravated forms of affray, but there are aggravated forms of assault.
Third, an affray is considered by the courts to be more serious offence than some forms of assault such as common assault.
Does an affray need to be committed in public?
No, an affray is considered a public order offence, however it still applies to conduct carried out in private places.
Can I still be found guilty of committing an affray if I did not harm anyone?
Yes, this is because the offence of affray extends to situations where unlawful violence is threatened but not carried out. As such, it is only relevant to consider whether your conduct would have caused a person of reasonable firmness present at the scene of your actions to fear for their personal safety.
In addition, if you commit an affray in a group of people, even if you do not harm anyone, the court will consider the harmful actions of other members of the group, when determining whether you are guilty of an affray.