Affray

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For the British submarine, see HMS Affray (P421).
A street fight

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 (the lieges). 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]

Australia[edit]

In Queensland, section 72 of the Criminal Code of 1899[2] 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."[3]

India[edit]

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[edit]

In New Zealand affray has been codified as "fighting in a public place" by section 7 of the Summary Offences Act 1981.[4]

South Africa[edit]

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

United Kingdom[edit]

England and Wales[edit]

In England and Wales, affray is a statutory offence. 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) . . .
(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]

Section 3(6) provided that a constable could arrest without warrant anyone he reasonably suspected to be committing affray. It was repealed by paragraph 26(2) of Schedule 7 to, and Schedule 17 to, the Serious Organised Crime and Police Act 2005.

"Violence"

This expression is defined by section 8.

Mens rea

A 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]

See also sections 6(5) to (7).

Mode of trial

Affray is triable either way.

Use

In recent years, the option to charge people with affray has been used as part of a strategy by HM Government to aggressively address problems with drunken individuals who cause serious trouble on airliners.

Common law offence

The common law offence of affray was abolished[7] for England and Wales[8] on 1 April 1987.[9]

Northern Ireland[edit]

Affray is a serious offence for the purposes of Chapter 3 of the Criminal Justice (Northern Ireland) Order 2008.[10]

United States[edit]

In the United States the English common law as to affray applies, subject to certain modifications by the statutes of particular states.[1][11]

Georgia[edit]

In 2011, a Henry County, Georgia State Judge dropped Affray Charges against five African American football players who taunted, and assaulted an Asian American while screaming 'racial insults' against Asians outside a bar. The five on one assault 'was not affray' the judge pronounced.[12]

See also[edit]

References[edit]

  1. ^ a b c d "Affray", Encyclopædia Britannica, 1911
  2. ^ Schedule 1 to the Criminal Code Act 1899 (Qld)
  3. ^ "Criminal Code Act 1899", retrieved 22 July 2009 from the website of the Office of the Queensland Parliamentary Counsel
  4. ^ http://www.legislation.govt.nz/act/public/1981/0113/latest/DLM53522.html
  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. ^ The Public Order Act 1986, section 9(1)
  8. ^ The Public Order Act 1986, section 42
  9. ^ The Public Order Act 1986 (Commencement No. 2) Order 1987, article 2 and Schedule (1987/198 (C. 4))
  10. ^ The Criminal Justice (Northern Ireland) Order 2008, article 12(2) and Schedule 1, paragraph 5.
  11. ^ Bishop, American Criminal Law 8th ed., 1892, vol. i. sec. 535)
  12. ^ Bishop, Fifth suspect surrenders in Henry parking lot beating Jackson Progress Argus, 31 May 2011. Retrieved from http://www.jacksonprogress-argus.com/news/2011/may/31/fifth-suspect-surrenders-in-henry-parking-lot/)

Public Domain This article incorporates text from a publication now in the public domainChisholm, Hugh, ed. (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press.