PUBLIC ORDERBefore a defendant can be guilty of the offence of affray, he or she must use or threaten unlawful violence such that a person of reasonable firmness would fear for his personal safety.In P v Sanchez [1996] The Times, 6 March, the Court of Appeal confirmed that although the person of reasonable firmness could be a notional third party, he or she could not be the person who was the subject of the threat.

For there to be an affray there must be a situation such that at least a notional third party would feel threatened by the behaviour directed to the victim.

Affray is a public order offence and cannot be so widely defined as to cover every case of common assault.In Mepstead v DPP [1996] Crim LR 111, a police officer had taken hold of the defendant to calm him without arresting him.

The defendant then struck the police officer.

The court held that a police officer who took hold of a man's arm in such a situation not intending to detain or arrest him but in order to draw his attention to what was being said could be seen as acting in the execution of his duty.

It was for the tribunal of fact to decide whether physical contact went beyond what was acceptable by the ordinary standards of everyday life.

The touching should, however, be for no longer than was necessary to attract attention.In Chambers & Edwards v DPP [1995] CrimLR 896, the defendants were convicted of using disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby under s 5 of the Public Order Act 1986.

The defendants were demonstrators who made it difficult for a surveyor to undertake his work.

The surveyor felt no concern for his personal safety; he merely felt inconvenienced and annoyed by the disorderly behaviour.

This was sufficient to meet the requirements of the section.Complaints of conduct likely to cause a breach of the peace are made under s.115 of the Magistrates' Courts Act 1980.

In Nicol & Another v DPP [1995] The Times, 22 November, it was held that, before a person's conduct could be capable of provoking violence so as to come within the section, the behaviour must be unreasonable.

Conduct would not fall within the provision if the defendant was properly exercising basic rights of assembly, demonstration or free speech.

However, conduct could come within the provision if it would naturally provoke violence in others.In Percy v DPP 1995 3 All ER 124, the Divisional Court held that a breach of the peace in relation to s.115 had to involve violence or the threat of violence but that violence did not have to be perpetrated by the defendant; it was sufficient if the conduct was such that violence from some third party was a natural consequence of the action giving rise to a real risk rather than a mere possibility of some breach of the peace.

It confirmed that a finding could not be made under the section unless the prosecution proved its case to the criminal standard.