Common Assault and Battery

Question 1

Q: What is the offence of assault?

Answer 1

S39 Criminal Justice Act 1988- Any act which intentionally or recklessly causes another to apprehend immediate unlawful violence.

Question 2

Q: What type of offence is common assault? What sentence is it?

Answer 2

Summary offence
Maximum sentence of 6 months’ imprisonment

Question 3

Q: What is the CPS Charing Standard for a common assault? What is the level of injury?

Answer 3

A charge under s39 of the Act is appropriate where no injury or injuries which are not serious occur.
A s39 charge should be sought where injuries amount to no more than the following:
- grazes;
- scratches;
- abrasions;
- minor bruising;
- swellings;
- reddening of the skin;
- superficial cuts
- black eye

Question 4

Q: Is physical contact between the offender and victim required for an assault?

Answer 4

No!

Question 5

Q: What is the AR of common assault?

Answer 5

An act by the accused which causes the victim to apprehend or perceive that unlawful force or violence will be immediately applied to him.

Question 6

Q: What is the MR of assault?

Answer 6

MR needed to prove assault is either:
- the intention to cause apprehension of immediate unlawful violence; or
- subjective recklessness as to that consequence

Question 7

Q: What does ‘apprehend’ mean?

Answer 7

Causing V to fear unlawful force or violence- do not need to show V actually did fear the immediate use of force.
Victim must ‘apprehend’ (believe) that he is going to be subjected to immediate unlawful violence.

Question 8

Q: Does the victim have to believe that the immediate use of force is certain to occur?

Answer 8

No- causing fear of some possible violence is enough, provided the violent apprehended is about to happen in the immediate future.

Question 9

Q: What acts are classed as common assault?

Answer 9

Any act, including words or writing, may be sufficient in proving common assault eg: email, fax, letter or tweet. Silent telephone calls can fulfil the requirements for an assault (Ireland).

Question 10

Q: Does V have to fear the use of force or is the fear of further words/silence enough?

Answer 10

V must be shown to have feared the use of force; it will not be enough to show that a person threatened by words (or silence) feared more words or silence

Question 11

Q: Can assault be committed by omission?

Answer 11

Assault can only be committed by carrying out an act; it cannot be committed by an omission.

Question 12

Q: What does ‘immediate mean’?

Answer 12

No precise definition. It doesn’t mean ‘now’.
Ireland- HOL suggested that threats to cause violence ‘in a minute or two’ might be enough. Some time lapse would be acceptable.

Question 13

Q: Are conditional threats sufficient for a common assault? Case?

Answer 13

Words can negate an assault if they make a conditional threat. If D makes a hypothetical threat through saying “if it weren’t for the existence of certain circumstances, I would assault you” then there is no assault (Tuberville v Savage (1669))

Question 14

Q: Are immediate conditional threats sufficient for a common assault?

Answer 14

This is where D makes an immediate threat conditional upon real circumstances such as “if you don’t cross the road, I’ll break your neck”- such threats have been held to amount to an assault (Read v Coker 1853)

Question 15

Q: What is the offence of battery?

Answer 15

A battery is committed when a person intentionally or recklessly (subjectively) inflicts unlawful force on another (Fagan 1969)

Question 16

Q: What are the key elements for a battery?

Answer 16

1. Battery requires physical contact with V (small degree of physical contact is enough)
2. Unlawfulness of the force used or threatened (lack of consent) must consider 2 questions
   (a) did the alleged V in fact consent (expressly or by implication) to what was done; and
   (b) if so, do public policy considerations invalidate that consent?

Question 17

Q: What is meant by ‘unlawful’ force?

Answer 17

If the threat or application of force occurs in self-defence or in defending another or in the prevention of crime or as a result of any other criminal law defence, then it will be lawful force and the offence is not committed.

Question 18

Q: Is psychiatric injury a form of battery?

Answer 18

No- offence cannot be carried out via the phone causing psychiatric injury (Ireland 1998)

Question 19

Q: Can battery be committed by touching through clothes?

Answer 19

It is sufficient to constitute battery that the defendant attacks the clothing which another is wearing (R v Day (1845))

Question 20

Q: Does the force have to be direct or can it be indirect? X2 cases

Answer 20

It can be both direct and indirect.
Haystead 2000- D punched woman causing her to drop and injure a child she was holding, he was convicted of the offence against that child
Santa-Bermudez 2003- D held to have committed burglary against a PC when he falsely assured her he had no sharps in his possession causing her to stab herself on a hypodermic needle as she searched him

Question 21

Q: What is implied consent? What activities does it include?

Answer 21

We are all deemed to consent to various harmless and unavoidable contact such as brushing against another on a crowded train
Person may consent to serious harm during properly conducted sporting events, tattooing and medical operations

Question 22

Q: Can someone consent to being injured?

Answer 22

Generally, the answer is no!

Question 23

Q: Can people deem to consent to risk of battery in contact sports?

Answer 23

Participants in contact sports such as football are deemed to consent to the risk of clumsy or mistimed tackles or challenges; but this does not include tackles that are deliberately late or intended to cause harm- Lloyd 1989

Question 24

Q: What if the victim gives a valid consent to the threat or application of force?

Answer 24

The offence is not committed because the force threatened or used will not be unlawful. Where no ABH is caused consent may be validly given.
Where ABH or worse is deliberately inflicted, consent to it will ordinarily be deemed invalid on the grounds of public policy, even if victims know exactly what they are consenting to.

Question 25

Q: What about consent in relation to sado-masochistic injury?

Answer 25

Brown- assaults which result in more than transient harm will be unlawful unless there is good reason for allowing the plea of ‘consent’.
Wilson- clarified ‘true’ and ‘effective consent’- allowed man to consensually brand wife’s bum with a hot knife. This was seen to be similar to be a tattoo and courts are reluctant to criminalise activity between co-habiting partners when consensual.

Question 26

Q: What if the consent of the victim was obtained by fraud?

Answer 26

Richardson 1999- fraud will only negate consent if it relates to the identity of the person or to the nature and quality of the act.

Question 27

Q: What is the law on consent to serious harm for sexual gratification?

Answer 27

s71(2) Domestic Abuse Act 2021- it is not a defence that the V of a ‘relevant offence’ (s47, s20, s18) consented to the infliction of the serious harm for the purposes of obtaining sexual gratification.