Common Assault: Assault & Battery

Question 1

Ways of committing common assault

Answer 1

• Assault
• Battery

Question 2

What Act is the law on common assault governed by?

Answer 2

Both assault and battery are common law offences with no statutory definitions.

However, s39 of the Criminal Justice Act 1988 sets out the maximum punishment for assault and/or battery.

Question 3

Maximum punishment for assault and/or battery is

Answer 3

• 6 months imprisonment/£5,000 fine or both.

Question 4

Assault

Answer 4

An act which causes the victim to apprehend the infliction of immediate, unlawful force.

The defendant either intends to cause another to fear immediate unlawful person violence or is reckless as to whether such fear is caused.

Question 5

Actus reus of assault

Answer 5

• An act
• Which causes the victim to apprehend the infliction of immediate, unlawful force

Question 6

An act - assault

Answer 6

An assault requires some positive act – not an omission – including words.

Words can be verbal or written, as in R v Constanza and R v Ireland.

Question 7

R v Constanza (1997)

Answer 7

The defendant had written over 800 letters and made a number of phone calls to the victim. The victim interpreted the last two letters as clear threats. There was an assault as there was a ‘fear of violence at some time, not excluding the immediate future’. Held: Letters could be an assault.

Question 8

R v Ireland (1997)

Answer 8

Over a period of 3 months, the defendant harassed three women by making telephone calls to them at night, during which he remained silent and breathed heavily. Held: Silent telephone calls can be an assault because the D intended his silence to cause fear of immediate unlawful force.

Question 9

Apprehend immediate unlawful force

Answer 9

The important point is that the act or words must cause the victim to apprehend that immediate force is going to be used against him.

There is no assault if the situation is such that it is obvious that the defendant cannot actually use force.
- For example: Where the defendant shouts threats from a passing train, there is no possibility that they can carry out the threats in the immediate future.

Case: R v Lamb

Question 10

R v Lamb (1967)

Answer 10

It was held that pointing an unloaded gun at someone who knows that it is unloaded cannot be an assault. This is because the other person does not fear immediate force. It could only be an assault if the other person thought the fun was loaded.

Question 11

The force which is threatened must be…

Answer 11

• Unlawful – if it is lawful, there is no offence of assault
• Immediate – this does not mean instantly, but ‘imminent’ as in Smith v Chief Superintendent of Woking Police Station (1983).

Question 12

Smith v Chief Superintendent of Woking Police Station (1983)

Answer 12

The defendant went into a garden and looked through the female victim’s bedroom window on the ground floor at about 11pm one evening. She was terrified and thought that the defendant was about to enter the room, even though he was outside the house and no attack could be made at that immediate moment. Fear of what he might do next was sufficient for assault

Question 13

Words indicating that there will be no violence might prevent an act from being an assault. What cases was this seen in?

Answer 13

• Tuberville v Savage (1669)
• R v Light (1857)

Question 14

Tuberville v Savage (1669)

Answer 14

Savage placed one hand on his sword and said “if it were not assize time, I would not take such language from you”. This was held not to be an assault because what he said showed he was not going to do anything. Legal principle: Words indicating that there will be no violence may prevent an act from being an assault.

Question 15

R v Light (1857)

Answer 15

Light raised a sword above the head of his wife and said “were it not for the bloody policeman outside, I would split your head open.” This was held to be an assault because the wife feared that force was going to be used on her and words in the circumstance were not enough to negate that fear.

Question 16

Examples given for assault

Answer 16

• Raising a fist as though about to hit the victim.
• Throwing a stone at the victim, which just misses.
• Pointing a loaded gun at someone within range.
• Making a threat by saying “I am going to hit you”.

Question 17

Mens rea for assault

Answer 17

Either:
- an intention to cause another to fear immediate, unlawful personal violence

or

• subjective recklessness as to whether such fear is caused.

Question 18

Is assault a basic or specific intent offence?

Answer 18

Basic intent offence.

Question 19

Is the test for recklessness subjective or objective?

Answer 19

The test for recklessness is subjective. This means the defendant must realise there is a risk that his acts/words could cause another to fear unlawful personal violence.

Question 20

Battery

Answer 20

The application of unlawful force to another person, intending either to apply unlawful physical force to another or being reckless as to whether unlawful force is applied.

Question 21

Actus reus of battery

Answer 21

The actus reus of battery is the application of unlawful force to another person.

Question 22

[Battery]

What does ‘force’ mean?

Answer 22

Force is a misleading word, as it can include the slightest touch, as shown by the case of Collins v Wilcock.

Question 23

[Battery]

What does ‘unlawful’ mean?

Answer 23

The prosecution must establish that the offence was committed unlawfully.

This relies solely on direct evidence from the victim, and can be suggested by other evidence.

It could be a technical assault for a police officer physically to detain a person without violence and without any intention to arrest the person – as shown in Pegram v DPP (2019).

Question 24

Collins v Wilcock (1984)

Answer 24

Held: Force includes the slightest touching.

Question 25

Pegram v DPP (2019)

Answer 25

A police officer took hold of Pegram’s arm with what he judges to be just enough force to get his attention, to warn him that he may be able to commit a public order offence. The court stated that the police officer was acting in the execution of his duty. It is lawful for a police officer or any other person to make moderate and generally acceptable physical conduct with another person to attract their attention. The appeal was dismissed.

Question 26

Wood (Fraser) v DPP (2008)

Answer 26

Police had received a report that “Fraser” had thrown an ashtray at another person in a pub. They saw Wood leave the pub, who fitted the description. An officer took told of Wood by the arm and asked if he was Fraser. Wood denied this and tried to pull away. Held: as the first officer had not arrested Wood there was battery by the police officers. This meant Wood was entitled to struggle and was not guilty of assault against the police.

Question 27

R v Thomas (1985)

Answer 27

D touched the bottom of a woman’s skirt and rubbed it. Court of Appeal held that if you touch a person’s clothes while they are wearing them, that is equivalent to touching the person even if they do not notice it.

Question 28

Battery committed through a continuing act

Answer 28

Fagan v Metropolitan Police Commissioner (1968)

Question 29

Fagan v Metropolitan Police Commissioner (1968)

Answer 29

D was told by a police officer to park by a kerb. In doing this, D drove on to the policeman’s foot, without realising. When the policeman pointed out what had happened, D refused to move the car. D was convicted. Held: Once D knew the car was on the police officer’s foot he had the required mens rea. As the AR was still continuing, the two elements were present together.

Question 30

Battery committed by an indirect act

Answer 30

A battery can also be committed through an indirect act. In this situation, the defendant causes force to be applied, even though he does not personally touch the victim.

Cases: Martin, DPP v K, Haystead v Chief Constable of Derbyshire

Question 31

R v Martin (1881)

Answer 31

D put an iron bar across the doorway of a theatre and switched off the lights. In the panic that was caused, several of the audience were injured when they were trapped and unable to open the door. D was convicted of an offence under s20 of the OAPA 1861.

Question 32

DPP v K (1990)

Answer 32

D (a schoolboy) took sulphuric acid from a science lesson to the toilets to see how it would react on toilet paper, but he heard footsteps so hid it in a hand dryer (intending to remove it later) and returned to class. However, the next person to use the hand dryer was sprayed with the acid. Court of Appeal held: “a common assault could be committed by an indirect act”.

Question 33

Haystead v Chief Constable of Derbyshire (2000)

Answer 33

D punched a woman, causing the small child she was holding to fall on the floor. D was found guilty because he was reckless as to whether/not his acts would injure the child. The principle of transferred malice would also apply.

Question 34

Omissions as the AR for battery

Answer 34

As the actus reus of battery is the application of unlawful force, omitting to perform an act is rarely battery. However, it can be seen in the case of DPP v Santa-Bermudez (2003).

Question 35

DPP v Santa Bermudez (2003)

Answer 35

The defendant failed to tell a policewoman that he had a needle in his pocket. She was injured when she searched him. Held: an omission is sufficient for the actus reus of battery.

Question 36

R v Miller (1983)

Answer 36

D accidentally set fire to his mattress but failed to prevent damage to the building in which he was sleeping. D was convicted of arson. (If there had been someone else in the room and Miller had failed to wake him and warn of the danger he would be liable for a battery.)

Question 37

Battery without an assault

Answer 37

It is possible for there to be a battery without an assault.

This can occur where the victim is unsure that unlawful force is about to be used on him. E.g. where the attacker comes up unseen behind the victim’s back or if the victim is asleep.

The first thing the victim knows is when he is struck; there has been a battery but no assault.

Question 38

The mens rea for battery

Answer 38

Either:

• an intention to apply unlawful physical force to another, or

or

• subjective recklessness as to whether unlawful force is applied.

For subjective recklessness: the defendant must realise there is a risk that his act/omission could cause unlawful force to be applied to another.