Non-Fatal Offences
Against The Person
Assault and Battery
Lesson Objectives
• I will be able to state the meaning of assault
and battery
• I will be able to distinguish between assault
and battery
• I will be able to explain cases that illustrate
assault and battery
• I will be able to apply the rules to a given
situation
Assault and Battery
Assault and battery are together referred to as ‘common assault’, but it
needs to be recognised that they are two separate and distinct
offences.
Assault – causing victim to fear harm, but no requirement that harm is
suffered
Battery – actual infliction of harm
In theory, one can be committed without the other.
Both – fist pulled back (assault) punch (battery)
Battery – punch from behind
Assault – fist pulled back, punch misses
Non-fatal offences: assault
Assault
Non-fatal offences: assault
Definition
Assault is not defined in an Act of Parliament, as it is a
common-law offence.
Section 39 of the Criminal Justice Act 1988 provides that
assault is a summary offence with a maximum sentence on
conviction of 6 months’ imprisonment or a fine.
R v Venna (1976) provided the accepted definition of assault
as ‘the intentional or reckless causing of an apprehension of
immediate unlawful personal violence’.
Non-fatal offences: assault
Actus reus
• The actus reus of assault is any act that makes the victim fear
that unlawful force is about to be used against him or her. No
force need actually be applied, and actions such as raising a fist,
pointing a gun or brandishing a sword will be sufficient.
• Words can amount to an assault Constanza (1997), as can a
silent telephone call.
• There is no assault if it is obvious to the victim that the
defendant cannot or will not carry out his or her threat of
violence.
• The victim must fear immediate threat of harm, not at some
time in the future.
Actus Reus
In Ireland; Burstow (1997) the HoL confirmed
that an assault is committed when the accused
intentionally or recklessly causes the victim to
apprehend immediate and unlawful violence.
The actus reus of assault is:
• An act
• Causing the victim to apprehend immediate
and unlawful violence
An Act
• An act or words from the defendant must cause the victim’s fear. An
omission does not count. Assault could be gesticulating a finger
across the throat
• Constanza (1997) – words alone were sufficient for an assault – 812
letters to victim. Victim read them as threats, hence there was
asault
• R v Burstow (1997) – silence can amount to an assault – silent
phone calls
• Tuberville v Savage (1669) – words spoken by the defendant will
prevent an act from being assault if they clearly show that there is
no intended action
Causing the victim to apprehend
immediate and unlawful violence
• Cause – same principle of causation from AS
• Apprehend – if the victim does not apprehend
immediate force then an assault has not been
committed – Lamb (1967). Fear is not actually
needed, it is anticipation – heavyweight boxer
expecting a slap from old lady is technically
assault
• Immediate – traditionally it must be immediate, but
there is amore liberal view when relating to
harassment and stalking campaigns. Smith v Chief
Superintendent of Woking Police Station (1983) –
immediate does not mean the same as instantaneous.
R v Burstow – only has to cause the possibility of an
immediate attack, also the fear does not have to be
rational, just genuinely held
• Unlawful violence – ‘violence’ is misleading and so the
word ‘force’ can be used. Generally a lack of consent to
the feared violence will make it unlawful
Non-fatal offences: assault
Mens rea
The mens rea of assault is either:
• intention – Savage (1992) or
• Cunningham (1957) recklessness
The defendant must have either intended to cause the victim
to fear the infliction of immediate and unlawful force, or must
have seen the risk that such fear would be created.
Non-fatal offences: battery
Battery
Non-fatal offences: battery
Introduction
Section 39 of the Criminal Justice Act 1988 provides that
battery is a summary offence, punishable by up to 6
months’ imprisonment or a fine. Like assault, it is a
common-law offence.
Non-fatal offences: battery
Actus reus (1)
The actus reus of battery consists of the application of
unlawful force on another. Any unlawful physical contact
can amount to a battery. There is no need to prove harm
or pain – a mere touch can be sufficient. – Ireland;
Burstow (1997)
Battery can be direct or indirect. Direct battery is force
applied directly by one person to another, e.g. a slap.
Indirect battery can be applied using an implement or
vehicle.
Actus Reus
• Collins v Willcock (1984) – any touching of
another person, however slight, may amount to a
battery. – policeman taking arm of prostitute
• Slap, kiss, throwing drink, touching clothes – have
all been considered as meeting the requirements
for battery
• Thomas (1985) – school caretaker rubbing the
hem of a girl’s skirt
• Most common assault batteries do involve some
sort of minor harm – grazes, scratches, minor
bruising, reddening of the skin
Unlawful Physical Force
• The fact that the victim has not consented to the
battery will usually make the act unlawful
• However, genuine consent will not always make
the act lawful – defences , discussed later in year
• Certain force is lawful without consent –
policeman – contrast with Collins v Willcock –
what was the difference?
• Lord Goff in Collins v Willcock – some touching is
acceptable in everyday life
Indirect Batteries
• Batteries can be inflicted indirectly – Martin
(1881) – bar across theatre exit
• DPP v K (1990) – sulphuric acid in hand drier
• Further developed in Haystead v Chief
Constable of Derbyshire (2000) – punch lady
who dropped her baby – woman became an
instrument to commit the battery
Omissions
• A battery can be committed by an omission
but only where there is a duty to act
• Santana-Bermudez (2004) created a
dangerous situation and failed to act –
hypodermic needle in drug search
Non-fatal offences: battery
Mens rea
The mens rea of battery was confirmed in Venna (1976) as
the intention to apply force to another or recklessness as
to whether such force is so applied. This intention or
recklessness is only required for the act of physical contact
itself, not in respect of harm that might arise from it.
Defendant may be liable under the rle of transferred
malice – Latimer (186) Belt buckle
Non-fatal offences: battery
Joint Charging Standards
Often, the offences of assault and battery occur at the
same time. This is known as common assault. The police
and Crown Prosecution Service have agreed the Joint
Charging Standards, which set out the types of injury that
will be regarded as common assault. Such injuries include:
• minor bruising
• grazing
• small cuts
• swelling
Other resources
Non-fatal offences against the
person
Assault and battery
Common assault
• Common assault includes two separate offences, assault
and battery
• They are common law offences (hence the name), and are
not defined in any statute
• However, the Criminal Justice Act 1988 s 39 classifies them
as summary offences and they are charged under this
section
• Assault is to cause someone to apprehend immediate and
unlawful personal violence
• Battery is the unlawful application of force
• They often go together, but the law for each is different
Assault: actus reus
• The actus reus of assault is an act which
causes another to apprehend immediate,
unlawful violence, or force
• The law has developed through cases but this
definition was confirmed in Ireland
• So there are two things to consider
 Is there an act?
 What effect did it have on the victim?
An act
• The act can include words, or even silence
• Look up Constanza and Ireland
• What were the ‘acts’ in each case?
Apprehend immediate, unlawful force
• It is the effect on the victim which is important
• If the other person is not afraid there can be
no assault – Lamb
• The fear must be of immediate force but this
is quite wide
• In Smith v Chief Superintendent of Woking
Police Station the victim feared ‘immediate’
force even though the man was outside
Other issues
• Words can also prevent an assault – see
Turbeville v Savage
• Why was there no assault?
• Also the fear must be of unlawful force
Assault: mens rea
• The mens rea for assault matches the actus
reus. It is:
– intention to cause the victim to apprehend unlawful
and immediate violence, or
– recklessness as to whether the victim apprehends
unlawful and immediate violence
Summary of assault
Must cause V to apprehend
immediate, unlawful force
Mens rea is intent
or recklessness
Assault
Words can prevent
an assault,
Turbeville
Can be words or
silence, Ireland
Battery: actus reus
• The actus reus of battery is the application of
unlawful force to another
• Assault and battery often, but not always, go
together
• A threat with a raised fist followed by a punch
would be both
• A threat alone would just be assault
• A punch from behind would just be battery
Unlawful force
• In Collins v Wilcock the police officer who took
hold of the woman’s arm was acting unlawfully. If
the arrest had been lawful it would not have
been battery
• A similar case is Wood. What happened in this
case?
• The force can be slight, as in Thomas. What was
said to be unlawful force?
Continuing act
• Remember Fagan? That was a case of battery.
What happened?
• The court held that there was a continuing act of
battery by leaving the car on the police officer’s
foot
Indirect force
• In DPP v K a schoolboy put acid in a hot air drier
• Another pupil used the drier and was injured
• The court held such an indirect act could be a
battery
• Note this was a case of assault occasioning actual
bodily harm, but this offence requires common
assault which is either an assault or a battery
• Another example is Haystead
Making force lawful
• If the victim consents to the force this will make it lawful
• Can you think of an example?
• There would be consent in sports such as rugby where
using force is part of the game
• Also in surgical procedures, or a trip to the dentist
• Acting in self-defence also makes force lawful
• Both consent and self-defence come later under defences
Battery: mens rea
• As with assault, the mens rea is intent or
subjective recklessness
• For battery it is intent or recklessness as to
whether unlawful force is applied
• D must intend or see the risk of unlawful force
being applied to another
Summary of battery
Unlawful force,
Collins v Wilcock
Mens rea is
intent or
recklessness
Battery
Can be indirect,
DPP v K
Can be a
continuing act,
Fagan