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Affray is a serious public order offence, often misunderstood by those who face charges or witness such incidents. While commonly associated with fights or violence in public places, the legal definition and implications of affray are more nuanced. This article explores what constitutes affray, how it’s prosecuted, and what those accused should know.
Affray is defined under Section 3 of the Public Order Act 1986 as:
“A person is guilty of affray if they use or threaten unlawful violence towards another, and their conduct is such as would cause a person of reasonable firmness present at the scene to fear for their personal safety.”
Affray has roots in common law but was codified in statute by the Public Order Act 1986. It was historically used to regulate behaviour in public gatherings, riots, and street fights. Unlike lesser public order offences, affray is an either-way offence, meaning it can be tried in either the Magistrates’ Court or Crown Court.
| Offence | Definition (Public Order Act 1986 section) | Key Difference | |
|---|---|---|---|
| Riot (s 1) |
|
Largest group threshold; gravest public-order crime | |
| Violent Disorder (s 2) | 3 or more persons use or threaten unlawful violence; conduct would terrify a reasonable bystander. (Max: 5 yrs’ custody) | Needs a group but smaller than riot; no common-purpose element | |
| Affray (s 3) | A person (1 +) uses or threatens unlawful violence so a person of reasonable firmness would fear for safety. (Max: 3 yrs on indictment) | Can be committed by one person; revolves around bystander fear, not actual harm | |
| Assault (common-law / OAPA) | Intentional or reckless application (or threat) of unlawful force to an individual victim. (Common assault max: 6 mths; ABH: 5 yrs) | Targets a particular victim; no “reasonable firmness” test or public element | |
| Fear or Provocation of Violence (s 4) | Uses threatening/abusive/insulting words, behaviour or visible representation with intent to cause someone to believe immediate violence will be used or to provoke such violence. (Summary; 6 mths) | Concerned with words/gestures rather than actual violence; intent to provoke is essential | |
| Intentional Harassment, Alarm or Distress (s 4A) | Intentionally uses threatening/abusive/insulting words, behaviour or display causing—and meant to cause – harassment, alarm or distress. (Summary; 6 mths) | Requires proof of intent and actual distress, but no fear of violence | |
| Harassment, Alarm or Distress (s 5) | Uses threatening/abusive words or disorderly behaviour within earshot/eyesight of someone likely to be harassed, alarmed or distressed. (Summary; level-3 fine) | Lowest threshold – no intent or actual distress needed; punishable by fine only |
The prosecution must prove beyond reasonable doubt:
As an either-way offence, affray can be:
In either court, factors such as use of weapons, extent of violence, and location are considered when determining severity.
In 2024, Fosters’ criminal law solicitors were instructed in relation to a large-scale public disorder at a high-profile football match. A number of defendants were charged with various public order offences, including affray. Working with our client, we successfully negotiated with the prosecution to downgrade his charge from both violent disorder and affray, resulting in our client receiving a fine whilst others were imprisoned in their part.
According to the Sentencing Council:
“Affray involves behaviour that would cause bystanders to fear for their safety. Sentences reflect the need to deter violence and maintain public order.”
Solicitors often argue defences such as:
Having experienced criminal law solicitors like Fosters Solicitors’ nationally-recognised Crime and Defence team, can significantly affect the outcome through strong mitigation or dismissal arguments.
Ranked as a Top Tier firm by The Legal 500 UK, our experts are regularly involved in major criminal cases both locally and nationally – and are here to support you with their full defence service 24 hours a day, seven days a week.
Contact us for more information.
Affray is a public order offence in the UK where a person uses or threatens unlawful violence in a way that would cause a reasonable bystander to fear for their safety. It can occur in both public and private spaces and does not require anyone else to be present.
Affray is prosecuted under the Public Order Act 1986. It is an either-way offence and can be tried in Magistrates’ or Crown Court, depending on the seriousness. Sentencing ranges from fines to up to 3 years’ imprisonment.
Not necessarily. Affray targets threatening public conduct, while assault focuses on individual harm. However, affray can carry longer sentences depending on circumstances.
Yes. The maximum sentence for affray in the Crown Court is 3 years’ imprisonment. Less severe cases may receive fines or suspended sentences.
No. Affray does not require a specific victim. It is about the fear it would cause to a hypothetical bystander.
Yes, if the Crown Prosecution Service decides there’s insufficient evidence or if a strong defence like self-defence is established, charges may be withdrawn.
This article was produced on the 3rd July 2025 for information purposes only and should not be construed or relied upon as specific legal advice.
