Affray (Public Order Act 1986): Definition, Sentencing and E...

Introduction

Affray is a serious public order offence in England and Wales under section 3 of the Public Order Act 1986. It covers using or threatening unlawful violence towards another in a way that would cause a person of reasonable firmness present at the scene to fear for their personal safety. It can occur in public or private places and may be committed by one person acting alone or by several people.

Affray is an either‑way offence. Cases can be heard in the Magistrates’ Court or sent to the Crown Court depending on seriousness. On indictment, the maximum penalty is three years’ imprisonment, an unlimited fine, or both. In the Magistrates’ Court, custodial powers are lower (commonly up to six months’ imprisonment), with fines and community orders also available.

This guide explains the legal test, how sentencing works, and which factors make a case more or less serious, with practical examples.

What You'll Learn

• The legal definition and elements of affray under section 3 Public Order Act 1986
• How the “person of reasonable firmness” test works
• Where affray can be tried and the maximum sentences
• How sentencing guidelines assess culpability and harm
• Aggravating factors that increase seriousness
• Mitigating factors that can reduce a sentence
• Practical pointers on evidence, pleas, and common issues

Core Concepts

Definition and elements (s.3 Public Order Act 1986)

To convict for affray, the prosecution must prove:

• The defendant used or threatened unlawful violence towards another person.
• Their conduct was such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety.
• The defendant intended to use or threaten violence, or was aware that their conduct might be violent or might be perceived as threatening violence.

Key points:

• Threats alone can be enough if they would cause a person of reasonable firmness to fear for their safety.
• The fear test is objective. It focuses on the effect the conduct would have on a hypothetical person of reasonable firmness at the scene; there need not be an actual person present.
• “Towards another” means the violence or threat must be directed at a person. Violence solely against property will not usually satisfy affray.
• Lawful self‑defence is not “unlawful violence”. Where self‑defence is raised, the prosecution must disprove it.

Mode of trial and maximum sentence

• Either‑way offence:
  • Magistrates’ Court: typically up to six months’ imprisonment (plus fines or community orders).
  • Crown Court: up to three years’ imprisonment, an unlimited fine, or both.
• The venue depends on seriousness, including use of weapons, level of harm, and the defendant’s record. Magistrates may send more serious cases to the Crown Court for sentence.

Sentencing guidelines: culpability and harm

Courts sentence affray by assessing:

• Culpability (A–C): the offender’s role and how far they intended or used serious violence.
  • Class A: highest. Examples include acting in a group, using or brandishing weapons, or intending to cause very serious violence.
  • Class B: mid‑range. Includes cases involving weapons present but not used to cause very serious injury, or conduct between A and C.
  • Class C: lowest. Minimal threat or use of violence; cases involving fear or provocation where full self‑defence is not made out.
• Harm (Categories 1–3): the impact on the victim and others.
  • Category 1: serious physical injury or serious distress.
  • Category 2: harm between Categories 1 and 3.
  • Category 3: little or no physical injury and limited distress.

The court places the case on the matrix (culpability by harm) to reach a starting point and category range, then adjusts for aggravating and mitigating factors.

Aggravating and mitigating factors

Aggravating factors (can increase sentence):

• Previous convictions, especially for violence or weapons
• Offending while on bail
• Hostility based on religion, race, disability, sexual orientation, or transgender identity (statutory uplift applies)
• Use or brandishing of a weapon or highly dangerous item
• Offending in a busy public place or near vulnerable people (e.g., near a school, public transport)
• Group involvement or leading role
• Planning or sustained incident
• Alcohol or drug‑fuelled conduct where it increases risk

Mitigating factors (can reduce sentence):

• Minor role in a group incident
• Genuine steps to defuse the situation or withdraw
• Remorse and early admissions
• No previous convictions or long period of good behaviour
• Age and lack of maturity
• Mental health conditions or learning disability that contributed to the offence
• Being a primary carer for dependants
• Provocation or strong personal mitigation (short of a full defence)
• Early guilty plea (qualifies for sentence reduction under the guilty plea guideline)

Key Examples or Case Studies

1) Threats in a pub, no injury

• Facts: A lone defendant shouts violent threats at another patron, clenches fists, and moves aggressively. Bystanders step back in fear. No physical contact; no weapon.
• Legal test: Threats towards a person that would cause a person of reasonable firmness present to fear for their safety. Elements likely met.
• Guideline assessment: Culpability C (minimal violence) or B (if sustained/aggressive), Harm Category 3 (no injury) or 2 (notable distress).
• Venue and outcome: Suitable for Magistrates’ Court. Sentence could range from a community order to a short custodial term depending on history and aggravation.

2) Group street fight with bottle used

• Facts: Three defendants confront another group. One brandishes a bottle and swings it, causing cuts. Families with children nearby are distressed.
• Legal test: Use of unlawful violence towards others with objective fear for safety. Clear affray.
• Guideline assessment: Culpability A (group involvement and weapon), Harm Category 1 (injury and serious distress to those nearby).
• Venue and outcome: Likely Crown Court. Custody within the higher range, with possible uplift for hostility if relevant and aggravation for public location.

3) Scuffle after provocation, self‑defence not made out

• Facts: Heated words at a house party. The defendant, believing a punch is coming, pushes and makes threats. CCTV shows some backing away; no injuries.
• Legal test: Threats or limited use of force towards a person; objective fear test likely satisfied. Self‑defence partly raised but not fully established.
• Guideline assessment: Culpability C (limited violence with fear element), Harm Category 3 (little/no injury).
• Venue and outcome: Magistrates’ Court. With early guilty plea, remorse, and good character, a community order or fine may be appropriate.

Practical Applications

• Check the elements carefully:
  • Was the conduct directed towards a person (not just property)?
  • Would a person of reasonable firmness present have feared for their safety?
  • Did the defendant intend or realise their conduct might be violent or perceived as threatening?
• Examine self‑defence:
  • Gather evidence of perceived threat, proportionality, and attempts to retreat.
  • If self‑defence is raised, the prosecution must disprove it.
• Evidence to gather:
  • CCTV, body‑worn video, and audio capturing tone, gestures, and threats
  • Witness statements (including those present who felt fear)
  • Medical evidence if injuries occurred
  • Context: location, presence of children or vulnerable people, alcohol/drug use
• Sentencing focus:
  • Map facts to culpability (A–C) and harm (1–3).
  • Identify aggravating features early (e.g., weapon, group action, hate‑based hostility).
  • Prepare mitigation: steps to withdraw, remorse, lack of previous convictions, mental health, caring responsibilities, and genuine efforts to address behaviour (e.g., alcohol treatment).
  • An early guilty plea can reduce the sentence; timing matters.
• Venue considerations:
  • Serious cases (weapons, group violence, significant harm) often go to the Crown Court.
  • Less serious, one‑off incidents without injury are often suitable for the Magistrates’ Court.

Summary Checklist

• Know the legal test: threats or use of unlawful violence towards a person; fear of a person of reasonable firmness present at the scene; intent or awareness
• Confirm it occurred in public or private (both are covered)
• Exclude property‑only damage; the conduct must be towards a person
• Consider self‑defence; if raised, it must be disproved by the prosecution
• Decide venue: either‑way offence; consider seriousness and sentencing powers
• Apply the sentencing matrix: culpability A–C and harm 1–3
• Identify aggravating factors (e.g., previous convictions, on bail, hate‑based hostility, weapon)
• Build mitigation (e.g., minor role, withdrawal, remorse, age/maturity, mental health, primary carer)
• Use early guilty plea credit where appropriate
• Prepare clear evidence on context, behaviour, and impact

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