A disagreement can escalate in seconds. One minute, two people are exchanging angry words. The next, someone has been threatened, people are running away and the police are being called.
When violence or the threat of violence becomes part of the incident, the allegation can become much more serious. One offence that may arise in these circumstances is affray.
Affray is a serious public-order offence. A conviction can result in a substantial criminal penalty and, in serious cases, imprisonment.
A pub argument that gets out of control
Consider this scenario. Two women leave a club late on a Friday night. One believes the other has deliberately bumped into her. An argument begins. At first, they are simply shouting at each other.
Several people gather nearby. One woman threatens the other and steps towards her. The other woman pushes her away. The situation immediately becomes physical and a punch is thrown.
Other people become involved. A bottle is picked up and used to threaten someone. Members of the public begin moving away because they are frightened.
The police arrive and separate the people involved. Several arrests are made. What began as a disagreement has potentially become a much more serious criminal matter.
What is affray?
Affray is an offence under section 3 of the Public Order Act 1986.
Broadly, it involves using or threatening unlawful violence towards another person in circumstances where a person of reasonable firmness would fear for their personal safety.
Importantly, words alone are not enough for affray. The conduct must involve the use or threat of unlawful violence.
This is one of the key distinctions between affray and some other public-order offences. The Crown Prosecution Service gives examples involving fights in public places where the level of violence would cause members of the public to fear for their safety.
How serious is affray?
Affray is considerably more serious than a basic disorderly behaviour allegation.
It is an either-way offence and carries a maximum sentence of three years' custody. That maximum does not mean that every person convicted of affray will receive three years in prison.
The court considers the seriousness of the particular offence and the relevant sentencing factors. A minor confrontation and a prolonged violent incident involving weapons and injuries are obviously very different situations.
Does there have to be an injury?
No. An injury may be important evidence in a case, but an injury is not necessarily required for affray. The offence concerns the use or threat of unlawful violence and whether the circumstances would cause a person of reasonable firmness to fear for their personal safety.
For example, a person who threatens someone with immediate violence during a frightening public confrontation could potentially face an affray allegation even if nobody is ultimately injured.
The exact facts will determine whether the legal test is satisfied.
What is the difference between affray and threatening behaviour?
The distinction can be important. Section 4 of the Public Order Act 1986 concerns threatening behaviour involving the relevant fear or provocation of violence.
Affray requires the use or threat of unlawful violence and the relevant circumstances concerning fear for personal safety.
Section 4 has a maximum sentence of six months' custody. Affray has a maximum sentence of three years' custody. The offence charged therefore matters enormously.
This is why someone accused of a pub fight should not assume that the matter is simply a case of being “drunk and disorderly”.
What evidence can the police use?
Modern Club-related incidents can produce substantial evidence.
For example:
CCTV
Clubs, Pubs, Shops and nearby businesses may have CCTV covering the street.
Footage can potentially show how the incident started, what happened during the confrontation and how people behaved afterwards.
Body-worn video
Police officers may have body-worn video recording the incident or the events immediately after they arrive.
Witness statements
Customers, employees, passers-by and other members of the public may provide statements.
Mobile phone footage
Members of the public may record incidents on their phones.
Medical evidence
Where somebody has suffered an injury, medical records and photographs may become relevant. The evidence does not necessarily tell the same story as the people involved.
Someone who remembers an incident as a brief argument may look very different on CCTV.
What happens after an arrest for affray?
A person suspected of affray may be arrested and taken to a police station. They may then be interviewed under caution. This can be an important stage of the investigation. The police may put allegations to the suspect and ask questions about what happened.
After the investigation, the person may be released or charged depending on the evidence and circumstances. If charged with affray, the case may proceed through the criminal courts.
The person remains innocent unless and until they are proved guilty.
Can alcohol be used as an excuse?
Alcohol can be a significant factor in club-related incidents, but it does not automatically prevent a prosecution.
A person may have consumed several drinks before becoming involved in an argument.
They may later say: “I was drunk.”
Or: “I don't remember what happened.”
However, the police and courts can consider independent evidence.
If CCTV shows what happened, witnesses describe the incident and police body-worn video records the aftermath, a person's lack of memory does not necessarily resolve the case.
What could the sentence be?
There is no single sentence for affray. The court considers the seriousness of the offence.
Factors can include:
- the level of violence;
- whether a weapon was involved;
- the number of people involved;
- whether members of the public were frightened;
- whether anyone was injured;
- whether the incident was prolonged;
- previous convictions;
- the defendant's role in the incident;
- and whether the defendant pleaded guilty.
The maximum sentence is three years' custody, but the maximum is reserved for the most serious cases falling within the offence.
The court will consider the applicable sentencing guideline when determining the appropriate sentence.
What if several people are involved?
An incident involving several people can become particularly serious. Imagine a fight breaks out outside the club involving six people. Someone throws a bottle. Another person punches a member of the public.
People nearby run away. The police arrive and have difficulty controlling the situation. The prosecution may consider multiple offences depending on the individual actions of those involved.
Importantly, everyone involved is not automatically responsible for everything that happened. The prosecution must establish the relevant offence against each defendant. This is why the precise evidence concerning an individual's actions can be critical.
Could a club fight result in prison?
Yes, potentially. A person convicted of affray can receive a custodial sentence.
However, imprisonment is not always automatic. The sentence depends upon the seriousness of the particular case.
A person convicted of a relatively less serious offence may receive a non-custodial sentence, while a particularly serious incident may justify custody.
Other offences committed during the same incident can also affect the overall consequences.
For example, if someone is seriously injured, the prosecution may consider an assault offence in addition to any public-order allegation.
Why early legal advice matters
If you have been arrested following a pub fight or are being investigated for affray, early legal advice can be extremely important.
The solicitor needs to understand what happened and what evidence may exist.
This may include CCTV, witness accounts and body-worn video. It may also be important to understand whether the police allegation accurately reflects your involvement.
A person who was present at an incident is not necessarily guilty of affray.
Equally, someone who believes the incident was “just a fight” should not underestimate the potential seriousness of the allegation.
Final thoughts
What starts with shouting can develop into threats, violence and fear among members of the public. Where unlawful violence or threats of unlawful violence meet the legal requirements, affray may be considered.
Affray is a serious criminal offence with a maximum sentence of three years' custody. However, the maximum sentence is not the automatic sentence.
Every case is different, and the court will consider the facts, evidence and relevant sentencing guidelines.
If you have been arrested for affray, involved in a pub fight, accused of threatening behaviour or charged with a public order offence, specialist criminal defence advice should be obtained.
Wainwright and Cummins LLP can advise and represent clients facing serious criminal allegations.
Frequently Asked Questions
What is affray?
Affray is a public-order offence involving the use or threat of unlawful violence in circumstances where a person of reasonable firmness would fear for their personal safety.
Can a club fight be affray?
Potentially. A fight in a public place may amount to affray depending on the nature of the violence, the circumstances and the evidence.
What is the maximum sentence for affray?
Affray carries a maximum sentence of three years' custody.
Do you have to injure someone to be charged with affray?
No. An injury is not necessarily required. The offence focusses on unlawful violence or threats of unlawful violence and the circumstances in which they occur.
Can you go to prison for affray?
Yes, imprisonment is possible, although the actual sentence depends on the seriousness of the offence and the circumstances of the defendant.
This article is for general information about the law in England and Wales and does not constitute legal advice. For any direct questions get in contact via email newenquires@wainwrightcummins.co.uk or call us today.
