What is the definition of the criminal offence of affray?

What is the definition of the criminal offence of affray?

Affray is generally a continuing offence that has the following elements:

  • a disturbance of the peace by one or more persons that is violent;
  • the disturbance is either public or private;
  • a bystander of reasonable firmness of character might reasonably be expected to be terrified.

For further clarification of the offence, we can turn to I v DPP [2002] 1 AC 285; [2001] 2 AII ER 583; [2001] 2 Cr App R 216 (HL), where Lord Hutton said:

“The offence of affray, both at common law and now under statute, was primarily intended to punish a person who engaged in a face-to-face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith [1997] 1 Cr App R 14 at 17:

‘It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on.’

His Lordship later said:

‘[A] person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.”

Interestingly, a person acting in self-defence may not be guilty of affray, as was held in R v Honeysett (1987) 10 NSWLR 638; 34 A Crim R 277 (CCA):

“The issue of self-defence is not limited to situations in which an accused reasonably believes that he is threatened with death or serious bodily harm and is available where the act of the accused was one merely of assault, or where an assault is made the basis for a charge of affray.”

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