Affray
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In many legal jurisdictions related to
United Kingdom
England and Wales
The
- (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 [Repealed]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
statutory maximum or both.[5]
The term "violence" is defined by section 8.[clarification needed]
Section 3(6) once provided that a constable could arrest without warrant anyone he reasonably suspected to be committing affray, but that subsection was repealed by paragraph 26(2) of Schedule 7 to, and Schedule 17 to, the Serious Organised Crime and Police Act 2005, which includes more general provisions for police to make arrests without warrant.
The mens rea of affray is that 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]
The offence of affray has been used by
In R v Childs & Price (2015),[7][8] the Court of Appeal quashed a murder verdict and replaced it with affray, having dismissed an allegation of common purpose.
Northern Ireland
Affray is a serious offence for the purposes of Chapter 3 of the Criminal Justice (Northern Ireland) Order 2008.[9]
Australia
In New South Wales, section 93C of Crimes Act 1900 defines that a person will be guilty of affray if he or she threatens unlawful violence towards another and his or her conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.[10] A person will only be guilty of affray if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.[11] The maximum penalty for an offence of affray contrary to section 93C is a period of imprisonment of 10 years.[12]
In
In Victoria, Affray was a common law offence until 2017, when it was abolished and was replaced with the statutory offence that can be found under section 195H of the Crimes Act 1958 (Vic). The section defines Affray as the use or threat of unlawful violence by a person in a manner that would cause a person of reasonable firmness present at the scene to be terrified. However, a person who commits this conduct may only be found guilty of Affray if the use or threat of violence was intended, or if the person was reckless as to whether the conduct involves the use or threat of violence. If found guilty, the maximum penalty that may be imposed for Affray is imprisonment for 5 years or, if at the time of committing the offence the person was wearing a face covering used primarily to conceal their identity or to protect them from the effects of crowd-controlling substances, imprisonment for 7 years.[15]
India
The
New Zealand
In
South Africa
Under the Roman-Dutch law in force in South Africa affray falls within the definition of vis publica.[1]
United States
In the United States, the English common law as to affray applies, subject to certain modifications by the statutes of particular states.[1][17]
See also
References
- Blackstones Police Manual Volume 4: General police duties, Fraser Simpson (2006). pp. 247. ISBN 0-19-928522-5
- ^ a b c d "Affray", Encyclopædia Britannica, 1911
- ^ The Public Order Act 1986, section 9(1)
- ^ The Public Order Act 1986, section 42
- (1987/198 (C. 4))
- ^ Digitised copy of section 3 of the Public Order Act 1986 from Legislation.gov.uk.
- ^ The Public Order Act 1986, section 6(2)
- ^ Pattinson, Rob (25 February 2015). "Gerard Childs and Stephen Price cleared of Prescot retail park murder of Jonathan Fitchett on appeal". Liverpool Echo. Trinity Mirror Merseyside. Retrieved 18 September 2016.
- ^ R v Childs & Price 2015: as yet unreported
- ^ The Criminal Justice (Northern Ireland) Order 2008, article 12(2) and Schedule 1, paragraph 5.
- ^ See also Colosimo and Ors v Director of Public Prosecutions (NSW) [2005] NSWSC 854 (25 August 2005) AustLII
- ^ Crimes Act 1900 (NSW) s 93D(2) AustLII
- ^ Crimes Act 1900 (NSW) s 93C(1) AustLII
- Criminal Code Act 1899(Qld)
- ^ "Criminal Code Act 1899", retrieved 22 July 2009 from the website of the Office of the Queensland Parliamentary Counsel
- ^ "Crimes Act 1958 - Section 195H". AustLII. AustLII. Retrieved April 9, 2024.
- ^ Section 7. Fighting in public place in Summary Offences Act 1981. legislation.govt.nz13 January 1981
- ^ Bishop, American Criminal Law 8th ed., 1892, vol. i. sec. 535
This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Affray". Encyclopædia Britannica (11th ed.). Cambridge University Press.
