Affray Outside Off-Stump: Explaining Ben Stokes’ Charges
This piece was first published on Keep Calm Talk Law in March 2018
Every so often, a news story regarding a celebrity or sportsman captures media attention for all the wrong reasons. Reports have emerged of one such instance that occurred on 25 September 2017: in the early hours of the morning, video footage obtained by The Sun showed England cricketers Ben Stokes and Alex Hales involved in an altercation with a group of men on the streets in Bristol. Since the incident, Stokes – alongside two other men, Ryan Hale and Ryan Aslam Ali – have been charged by the Crown Prosecution Service with affray. All three men are due to stand trial at Bristol Crown Court on 6 August 2018, having all pleaded not guilty to the charge.
Despite extensive press coverage of the incident from news organisations across the world, there is not enough information available to properly analyse how the law will apply to the facts of the case. In fact, to do so would be to risk being held in contempt of court: commenting on live cases – even on social media – can lead to charges under the Contempt of Court Act 1981.
Nevertheless, the incident involving Ben Stokes gives rise to the opportunity to explore in more detail an offence that is fundamental in most modern societies. This article will, therefore, explain the law surrounding the offence of affray, commenting on exactly how and when an altercation between individuals can cross the line into criminal activity.
The Offence of Affray - An Overview
The offence of affray, in essence, occurs following unlawful violence, fighting or a display of force by one or more persons in a public place. It is one of several public order offences that aim to prevent activity or behaviour that cause disruption or offence to the general public.
Originally a common-law offence, affray was given statutory footing under Section 3 of the Public Order Act 1986 (POA 1986). It is defined as a ‘triable either way’ offence, meaning that it can be tried in either the magistrates or crown court. If convicted in the magistrate's court, the maximum penalty is six months’ imprisonment alongside a fine of up to £5,000; alternatively, if the trial is heard before the Crown Court, the maximum penalty increases to three years’ imprisonment alongside a fine of an unlimited amount.
In Detail: The Actus Reus
The actus reus of an offence is the term used to define the conduct, activity or behaviour which a person must commit before they can be deemed to have committed the offence. It is one of the two elements of an offence that the prosecution must prove.
[U]ses 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.
Other parts of Section 3 of the POA 1986 expand upon this definition. For example, Section 3(2) of the POA 1986 explains that when two or more persons are using and threatening the unlawful violence, the assessment of its effect on other persons is made using the combined effect of their conduct. Meanwhile, Section 3(3) of the POA 1986 confirms that the relevant threat cannot stem from words alone, while Section 3(5) of the POA 1986 holds that the offence can take place in a private, as well as a public, place.
It is clear that it is insufficient for the prosecution to merely show that unlawful violence has been used; instead, the violence has to be of such a kind that a bystander would fear for his safety. The offence, therefore, envisages the involvement of three people: the person using or threatening violence, the recipient of the violent conduct, and a person of ‘reasonable firmness’ who fears for their safety because of the violence. However, Section 3(4) of the POA 1986 confirms that the person of reasonable firmness is hypothetical, and need not actually be present at the scene. This is the bedrock of what is known as the ‘notional bystander test’.
The importance of the notional bystander test was highlighted in R v Sanchez  Crim LR 572, where it was emphasised that the theoretical bystander, rather than the victim, must be put in fear for his or her personal safety. Thus, while the House of Lords confirmed in I and Others v DPP  that there must also be a 'victim' against whom the violence is directed, the High Court in Leeson v DPP  EWHC 994 (Admin) stated the offence is not made out where the violence is focused solely and exclusively on the victim, such that no notional bystander was put in fear for his safety.
Section 8 of the POA 1986 provides us with some definitions, with ‘violence’ being defined as ‘any violent conduct causing or intending to cause injury’. Importantly too, Section 8(a) of the POA 1986 notes that the offence of affray differs from other offences under the POA 1986 because it only includes violent conduct against other persons and not property.
The mens rea of an offence is the term used to define the mental state – typically, the intention or knowledge of wrongdoing – that a person must possess when carrying out the actus reus before they can be deemed to have committed the offence. It is the second of the two elements of an offence that the prosecution must prove.
In regards to affray, there must be proof that the defendant had intended to cause a disturbance by engaging in violent acts. They must also have been fully aware of the likely impact of their actions on others.
The most common defence available to affray is that of self-defence, which provides that a person may use reasonable force in defence of themselves or another. This defence arises both from the common law and – in the context of crime prevention – under Section 3 of the Criminal Law Act 1967. Self-defence results in a complete acquittal of the defendant. Generally speaking, the rationale is that the defendant is not guilty of the offence because the force used was not unlawful.
To successfully argue self-defence, the defendant must show that it was necessary and that their conduct was reasonable. In R v Owino  Crim LR 743, it was held that this is judged on the facts as the defendant honestly believed them to be at the time of the offence: the jury is therefore invited to step into the defendant’s shoes and see events through their eyes.
Section 76 of the Criminal Justice and Immigration Act 2008 (CJIA 2008) outlines the test for assessing what is ‘reasonable force’. Section 76(7)(b) of the CJIA 2008 states that evidence of the defendant having done what they honestly and instinctively believed was necessary for a legitimate purpose is strong evidence that reasonable action was taken. Section 76(3) of the CJIA 2008 says that the question of whether the force used was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be. Section 76(4) of the CJIA 2008 confirms that, if this belief is genuinely held, then a defendant is entitled to rely upon it even if mistaken.
Section 76(7)(a) of the CJIA 2008 also considers the fact that a defendant may act in the heat of the moment and therefore may not be able to weigh up the niceties of the reasonableness of his actions at the time, giving statutory footing to the common law principle from Reed v Wastie  Crim LR 221. Therefore, slight overreactions by the defendant will not prevent the operation of the defence provided they arose solely in the heat of the moment.
The Impact of Intoxication
In light of reported facts from the Ben Stokes case, it is likely that in the upcoming trial a crucial element of the legislation will be Section 76(5) of the CJIA 2008, which states that the defendant will not be able to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
This is because affray is a basic intent crime, meaning that a defendant need not have had a specific outcome in mind when he committed the offence, but instead simply act recklessly. In such situations, voluntary intoxication is no defence as the act of becoming voluntarily intoxication was deemed in DPP v Majewski  AC 443 to be a ‘reckless course of conduct’, automatically satisfying the mens rea of basic intent offences.
In contrast, if the defendant’s intoxication was involuntary – coming as a result of a spiked drink for example – then there is no impact on the availability of self-defence. Furthermore, the defendant may be able to rely on involuntary intoxication as a defence in itself.
No Person of Reasonable Firmness
An alternative defence is that the person of reasonable firmness would not have feared for their safety as a result of the defendant's actions. This may be where the defendant's actions were focussed solely on the victim, and in a manner where third parties of reasonable firmness would not, hypothetically or otherwise, be at risk of injury. If this is the case, following the ruling in Leeson v DPP  EWHC 994 (Admin), the offence is not made out.
A crucial thing for any interested observer of the Ben Stokes case to understand is that the offence of affray exists not to protect the people involved in the violent incident. Instead, it aims to protect the other people present (whether that be the passer-by in the street, the customers in a pub or the other passengers on the aeroplane) from potentially getting caught up in the violence.
Though it is neither appropriate nor possible to give a detailed analysis of how the trial of Ben Stokes and his fellow defendant might unfold – such that it would, therefore, be unwise to speculate about any of the legal implications of his actions – this article has sought to give an overview of the offence of affray so as to enable a greater understanding of what will happen in the upcoming proceedings.