Defences to Assault Flashcards
There are common and statutory defences to all offences of assault/battery. The justification, however, must always be comparable to the level of injury caused/ force used – which must always be ‘reasonable in the circumstances’.
The defences that may be used for charges of assault and battery include:
- Consent,
- Lawful correction / reasonable chastisement of a child,
- Prevention and detection of crime / self-defence (under common law).
What is consent in an assault?
Put simply, if a person is fully willing and able to consent to an assault, then there is no offence. Consent can be implied or explicit.
What are some every day examples where there is an implied or explicit consent to “assault” are:
A tap on the shoulder to draw attention.
Commuters on busy public transport where standing in very close proximity is expected.
A tattooist or piercer permanently disfiguring the skin of a customer.
Football stadium security ‘patting down’ a fan who voluntarily submits to the search as a condition of grounds entry.
Adults touching, lightly spanking or holding each other during sex.
Contact during lawful sports - providing injuries are sustained within play and within the rules
A doctor touching, pushing, moving the limbs of a patient.
Types of Consent:
Implied consent
Explicit consent
What is implied consent?
In certain circumstances, consent to an assault is not specifically given but is implied and allowed. Implied consent can only apply to reasonable bodily contact.
What is explicit consent?
Consent can only apply to reasonable bodily contact.
Even explicit consent given by the victim for more serious injury (ABH or GBH) is usually not enough for a court to find a not-guilty verdict.
Explicit consent to assault cannot be given by a child who is too young to know what he or she is consenting to.
The age at which the young person becomes able to give that consent would be for the court to decide, based on the individual and the specific act.
Lawful Correction/Reasonable Chastisement of a Child
A ‘reasonable chastisement’ defence remains available for parents (or adults acting in loco parentis) when a child is less than 16 years old.
This does not include school staff, as the use of corporal punishment in all British schools is unlawful.
This only applies charges of Battery under s39 Criminal Justice Act 1988. Section 58 of the Children Act 2004 removed the availability of the reasonable chastisement defence for parents (or adults acting in loco parentis) where the accused is charged with a more serious assault such as wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons less than 16 years of age.
What are the few pieces of key legislation, common law or PACE Codes that police officers should learn word-for-word, be able to recite when needed, and be able to explain in a compelling way. Along with the caution, these three ‘use of force’ powers should be on your learning list:
Common Law
Section 3 Criminal Law Act 1967
Section 117 Police and Criminal Evidence Act 1984 (PACE)
What is Common Law (R v Griffiths 1988)?
Common Law recognises that there may be circumstances in which one person may inflict violence on another, without committing a crime.
It recognises as one of these circumstances, the right of a person to protect himself/herself from attack and to act in defence of others and if necessary to inflict violence on another in doing so.
If no more than ‘reasonable’ force is used to repel the attack, such force is not unlawful. If you have an honestly held belief that you or another, are in imminent danger, then you may use such force as is reasonable and necessary to avert that danger.
What is Section 3, Criminal Law Act 1967?
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in the effecting or in the lawful arrest of offenders or suspected offenders, or of persons unlawfully at large”
This power allows to be used for so-called ‘citizen’s arrests’ (under Section 24A of PACE) to be carried out by a member of the public, or more commonly, a shop security guard.
What is Section 117 of PACE 1984?
States that “constables may use reasonable force, if necessary, in the exercise of powers under PACE, providing the exercise of this power does not first require the consent of another person”.
This power is most commonly used by police officers when making arrests under Section 24 PACE (most arrests you will do), as this kind of arrest does not come with its’ own specific use of force power and it clearly doesn’t require consent!
In Dewar v DPP [2010] EWHC 1050 it was reaffirmed that there is a two part test to self defence?
- That the individual believes that he/she was acting in self-defence
- That the force used was reasonable in the circumstances
There is no need to consider which person was the initial aggressor.
Defences that include the notion of ‘reasonable force’ include:
Self-defence (a common law defence, 76(2)(a) of the Criminal Justice and Immigration Act 2008.
Defence of property (a common-law defence, 76(2)(a)(a) of the Criminal Justice and Immigration Act 2008.
The use of force in the course of prevention of crime, or in making an arrest (s 3(1) of the Criminal Law Act (s 76(2)(b)).
Defending against intruders in a dwelling
In these situations, it might still be reasonable in the circumstances to use a degree of force that might otherwise be considered disproportionate.
