Can affray be committed by words alone?

No — s.3(3) states that a threat cannot be made by the use of words alone. There must be conduct beyond speech capable of amounting to the use or threat of unlawful violence.

Does someone need to actually be frightened for affray to be made out?

No. The test in s.3(1) is whether the conduct would cause a person of reasonable firmness present at the scene to fear for their personal safety — this is a notional, objective test, and no such bystander needs actually to have been present or put in fear.

Affray

The offence of affray under s.3 Public Order Act 1986 — the statutory elements (points to prove) reproduced verbatim, mode of trial and maximum sentence, and the arrest power, for frontline officers.

Unofficial independent resource — always verify with official sources (College of Policing, your force, PFEW).

Reviewed by the BlueLineHub Editorial Team

Last reviewed: 28 August 2026 · Next review due: 28 February 2027

Reviewed by BlueLineHub Editorial

What are the points to prove for affray under s.3 Public Order Act 1986?

Affray (s.3(1) Public Order Act 1986) requires: the defendant uses or threatens 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. A threat cannot be made by words alone (s.3(3)).

It is triable either way — the maximum on conviction on indictment is 3 years' imprisonment and/or a fine; on summary conviction it is 6 months' imprisonment and/or a fine (s.3(7)).

All offence cards

Affray is defined by s.3(1) Public Order Act 1986: 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. A threat cannot be made by the use of words alone (s.3(3)). The mental element (s.6(2)) and the meaning of "violence" (s.8) are reproduced verbatim below. It is educational reference, not a charging decision — verify against current law, CPS charging guidance and force policy.

Offence

s.3 Public Order Act 1986

Mode of trial

Triable either way

Maximum sentence

3 years' imprisonment and/or a fine on conviction on indictment; 6 months and/or a fine on summary conviction (s.3(7)).

Points to prove — statutory elements

Reproduced verbatim from the Act as published on legislation.gov.uk. These are the statutory elements, not a paraphrase — confirm the up-to-date text and any amendments at the source.

The summary penalty reproduced below refers to 'a fine not exceeding the statutory maximum' (s.3(7)). Since section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (in force 12 March 2015) that summary fine is UNLIMITED. The '6 months' summary custodial figure is current.

s.3 — Affray.the offence

(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3) For the purposes of this section a threat cannot be made by the use of words alone.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Affray may be committed in private as well as in public places.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) A person guilty of affray is liable on conviction on indictment to imprisonment for a term not exceeding 3 years or a fine or both, or on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both.

Read s.3 on legislation.gov.uk

s.6 — Mental element: miscellaneous.mental element (s.6(2))

(1) A person is guilty of riot only if he intends to use violence or is aware that his conduct may be violent.

(2) A person is guilty of violent disorder or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence.

(3) A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting.

(4) A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening or abusive, or is aware that it may be threatening or abusive or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly.

(5) For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment.

(6) In subsection (5) “intoxication” means any intoxication, whether caused by drink, drugs or other means, or by a combination of means.

(7) Subsections (1) and (2) do not affect the determination for the purposes of riot or violent disorder of the number of persons who use or threaten violence.

Read s.6 on legislation.gov.uk

s.8 — Interpretation."violence" defined

(8) In this Part—

“dwelling” means any structure or part of a structure occupied as a person’s home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose “structure” includes a tent, caravan, vehicle, vessel or other temporary or movable structure;

“violence” means any violent conduct, so that—

except in the context of affray, it includes violent conduct towards property as well as violent conduct towards persons, and

it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

Read s.8 on legislation.gov.uk

Powers of arrest & search

Arrest without warrants.24

A constable may arrest without warrant anyone whom they have reasonable grounds to suspect of committing affray, where an arrest is necessary on one of the s.24(5) grounds (PACE 1984 s.24). There is no separate statutory power of arrest in the Public Order Act 1986 for this offence.

Code of Practice: PACE Code G — arrest →

CPS charging guidance

Verbatim extracts from the CPS charging guidance (Crown copyright, reproduced under the Open Government Licence v3.0). CPS revises this guidance — confirm against the live page and current law.

Affray (Section 3)CPS charging guidance

Triable either way

Maximum: 3 years’ custody

Under section 3 of the Act, it must be proved that:

a person has used or threatened

unlawful violence towards another

and their conduct is such as would cause a person of reasonable firmness (had such a person been present at the scene) to fear for their own personal safety.

The accused must have intended to use or threaten unlawful violence; or have been aware that their conduct may be violent or may threaten unlawful violence.

The threat cannot be by words alone.

“Violence” does not include violence against property alone (see section 8 of the Act).

The offence may be committed in a public or private place.

Examples of the type of conduct appropriate for a section 3 offence include (but are not limited to):

A fight between two or more people in a place where members of the general public are present (for example in a public house, discotheque, restaurant or street) with a level of violence such as would put them in substantial fear (as opposed to passing concern) for their safety (even though the fighting is not directed towards them);

Indiscriminate throwing of objects directed towards a group of people in circumstances where serious injury is or is likely to be caused;

The wielding of a weapon of a type or in a manner likely to cause people substantial fear for their safety;

Where the facts of the offence make it suitable for summary trial, prosecutors should consider charging one of the offences under sections 4, 4A or 5 of the Act or an offence of common assault or battery rather than affray.

Under section 7(3), a jury which acquits a defendant of affray may bring in an alternative verdict of an offence contrary section 4 of the Public Order Act. This means (by virtue of section 6(5) of the Criminal Law Act 1967) that the defendant may plead not guilty to affray but guilty to section 4 in the Crown Court.

Incidents within a dwelling should not be charged as affray merely because a lesser public order charge is not available. Offences of assault are likely to be more appropriate. Affray should be considered in circumstances analogous to those listed above where serious violence is used or threatened.

R v Sanchez [1996] Crim L R 572 CA: It is the hypothetical bystander (see below), rather than the victim, who must be put in fear for his or her personal safety.

The courts have emphasised that the purpose of affray is to protect members of the public from being put in fear of being caught up in violence which is not directed against them. Other charges are available for the protection of persons at whom the violence is aimed.

I & Others v DPP (2002) 1 AC 285 HL: Apart from the hypothetical bystander, there must be present a 'victim' against whom the violence is to be directed. The offence was not made out where a group of youths were in possession of petrol bombs apparently waiting for a rival gang, but where they did not light them or brandish them.

Leeson v DPP [2010] EWHC 994 (Admin): It is not enough for the prosecution to prove that unlawful violence has been used. There has to be violence of such a kind that a bystander would fear for their safety. Where the violence is focused solely and exclusively on the victim, such that it would be incapable of causing a person of reasonable firmness present at the scene to fear for his safety, then the offence is not made out.

In most cases, where the conduct of those charged amounts to riot or violent disorder, there should be no difficulty in establishing that a hypothetical bystander would fear for their personal safety. The test is an objective one: had such a person been present and assuming that person to have been of reasonable firmness, would that person have been likely to have feared for their safety even if they were not directly targeted?

“At the heart of each of these three statutory public order offences [riot, violent disorder and affray] lies the use or threat of unlawful violence of a kind that would cause a person of reasonable firmness present at the scene to fear for his personal safety. In other words, the mischief to which these sections of the Act are directed is public disorder, that is, conduct of a violent or threatening kind that would cause ordinary members of the public going about their lawful business to fear for their safety if they happened to come upon it. The offences of riot, violent disorder and affray are carefully graduated, both by reference to the number of persons who must be present in order for the offence to be committed and by reference to the purposes for which violence is used or threatened.” (R v NW [2010] EWCA Crim 404.)

Read on cps.gov.uk

Affray — Sentencing Council guideline Public Order

A threat cannot be made by the use of words alone (s.3(3)) — there must be conduct beyond speech.
Affray can be committed by a single person acting alone; it is not limited to group disorder.
The 'person of reasonable firmness' is a notional test — no bystander need actually be present at the scene or be put in fear for the offence to be made out.
The violence used or threatened must be towards another person, not merely towards property.

Frequently asked

Is affray triable either way?: Yes — s.3(7) Public Order Act 1986 makes it triable either way. The maximum on conviction on indictment is 3 years' imprisonment and/or a fine; on summary conviction it is 6 months' imprisonment and/or a fine.
Can affray be committed by words alone?: No — s.3(3) states that a threat cannot be made by the use of words alone. There must be conduct beyond speech capable of amounting to the use or threat of unlawful violence.
Does someone need to actually be frightened for affray to be made out?: No. The test in s.3(1) is whether the conduct would cause a person of reasonable firmness present at the scene to fear for their personal safety — this is a notional, objective test, and no such bystander needs actually to have been present or put in fear.