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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 ) of ordinary people. 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, riot act, or riot; if so, it is for one of these offences that they are usually charged."Affray", Encyclopædia Britannica, 1911
In Queensland, section 72 of the Criminal Code of 1899Schedule 1 to the Criminal Code Act 1899 (Qld) 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." "Criminal Code Act 1899", retrieved 22 July 2009 from the website of the Office of the Queensland Parliamentary Counsel
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. "Crimes Act 1958 - Section 195H". AustLII. AustLII. Retrieved April 9, 2024.
The term "violence" is defined by section 8.
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constable could arrest without warrant anyone he reasonably suspected to be committing affray, but that subsection was repealed by paragraph 26(2) of Schedule 7 to, and Schedule 17 to, the Serious Organised Crime and Police Act 2005, which includes more general provisions for police to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.The Public Order Act 1986, section 6(2)
The offence of affray has been used by HM Government to address the problem of drunken or violent individuals who cause serious trouble on .
In R v Childs & Price (2015),R v Childs & Price 2015: as yet unreported the Court of Appeal quashed a murder verdict and replaced it with affray, having dismissed an allegation of common purpose.
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