Criminal Investigations by the Insolvency Service
by Camilla Rents | Criminal Defence Generally
Assault by beating is considered an offence against the person and stems from common assault, which is set out in Section 39 of the Criminal Justice Act 1988. An assault is any act which causes a person to suffer or fear they will suffer immediate unlawful violence. Assault by beating occurs where the assault has come through battery, meaning the defendant has applied unlawful force to another person. However, the victim does not have to suffer any physical or actual bodily harm, serious injury or psychiatric injury for the act to be considered assault by beating.
Slapping another person in the face
Pushing someone to the floor
Shoving someone through a door
In order to be found guilty of assault by beating the prosecution must prove the three following elements:
An individual has committed an act which caused another person to suffer immediate unlawful violence. Or the individual has struck, touched, or applied force to another person.
The victim did not consent to the conduct.
The individual’s conduct was intentional or reckless.
If you are found guilty of an assault by beating, then the sentencing guidelines are as such that you can receive a maximum sentence of up to 26 weeks custody (imprisonment) to a minimum sentence of a fine (equivalent to 150% of weekly income) or a Discharge (either Absolute or Conditional). The court takes into consideration the level of harm caused to the victim as well as the culpability of the accused. The sentencing guidelines are categorised into three levels, with Category 1 attracting the maximum penalty.
When calculating harm the court must consider all the facts of the case. The level of harm is determined by the presence of physical injury/injuries or the psychological harm caused to the victim. Factors that indicate greater harm include where the victim is particularly vulnerable, for example if they are elderly or a minority.
Culpability refers to the blameworthiness of the accused. Culpability is assessed with reference to the offender’s role, level of intention or premeditation. A list of characteristics that indicate culpability includes whether an injury was sustained by the victim, whether the victim is considered vulnerable, whether the assault was motivated by discrimination, or if the accused used or threatened the use of a weapon.
There are a number of additional offences to assault by beating. This includes the addition of racially aggravated assault by beating as well as assault by beating of an emergency worker.
Racially Aggravated Assault by Beating
The Crime and Disorder Act 1998 created a number of specific offences of racially aggravated crime, based on offences of wounding and other assault offences. The Act defines “racial group” as a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
The prosecution must prove that at the time of any assault by beating, or immediately before the assault, or immediately after the assault, the defendant demonstrated towards the victim of the offence hostility based on his membership or presumed membership of a particular racial group.
Assault of an Emergency Worker
The Assault on Emergency Workers (Offences) Act 2018 creates the offence of assault by beating of an emergency worker. The term ‘emergency worker’ covers a large variety of employees and does not require that they are in an ‘emergency situation’. Police officers, Prison officers, NHS workers, PCSOs and civilian employees within the police, volunteers such as St John’s Ambulance staff, hospital security staff and many contracted-out services, such as prisoner escort agents, fall under the definition of an ‘emergency worker’.
To charge someone with assaulting an emergency worker the prosecution needs to prove two elements: an assault has been committed and the victim is an emergency worker.
One of the most common defences for assault by beating is consent:
A charge of assault by beating can be contested if it can be proven that the victim consented. It can be argued that the victim has implied consent and the most common example of this is participating in sport. However, consent can only be a defence to assault by beating where the consent is valid. Consent would not be valid for the purposes of a defence, if it was uninformed or forced, or was the consent of a child who was not old enough to give a lawful consent.
Additionally, the following general defences apply to individuals accused of assault by beating:
You are legally entitled to use reasonable and proportionate force to defend yourself and your property. If you are attacked, you may use a necessary amount of force to defend yourself. For example, responding to an attack in order to protect yourself or someone else from physical injury is a defence. Retaliation, which is not necessary or proportionate to the attack, would not amount to a defence.
For example, if you are attacked in the park by another person you cannot be held criminally responsible for using reasonable force to defend yourself or another. But using force against someone who has assaulted you on a previous occasion might not amount to self defence.
Duress and necessity cover instances where the accused was forced by another person or a set of circumstances to commit the offence.
For example, if you are approached by another person who threatens you with physical violence unless you commit assault against a third party, and that is the only reason you commit the assault, you may not be liable for the assault on the third party.
If proven by a medical professional whom is duly approved under section 12 of the Mental Health Act 1983, mental illness can amount to a defence to assault by beating. However it must be proven that the accused lacked the ability to reason, such that they did not know the act they were doing was against the law.
In these circumstances, a fitness to plead assessment may take place before a defendant can enter their pleas to the alleged offences in court. When determining fitness to plead the medical professional will determine the extend to which the defendant can:
Understand the nature of the charge and the difference between pleading guilty and not guilty.
Follow the course of proceedings on the trial and understand the evidence presented in court.
Instruct their legal representatives properly and challenge any jurors to whom they may object
This defence can arise when the accused is mistaken as to the factual circumstances and this mistake has resulted in the accused committing the offence. It must be proven that the accused would not have committed the offence if they had known otherwise.
For example, if you believe you have witnessed someone commit a criminal offence and attempt to stop them from leaving the scene by jumping on top of them, however it is later made clear that the individual was not involved in committing the crime, the court will consider whether your belief was honest but mistaken.
Automatism includes circumstances where someone was not aware of their actions when committing the offence. Medical automatism can be used as a defence where the accused has committed the crime while unconscious.
For example if you attack the victim while sleepwalking, you cannot be held liable for the actions you committed while unconscious. Medical evidence will usually be required to argue this defence successfully.
Use of force in the prevention of crime
Using reasonable force in order to prevent a crime from occurring may lead the police or CPS to decide against prosecuting an individual. The public interest in avoiding the use of violence generally has to be balanced against the need not to penalise members of the public who act to prevent crime reasonably.
For example, if you witness an individual trying to burgle a shop and push them to the floor in order to stop the perpetrator from getting away, there is unlikely to be any public interest in you being prosecuted fro assault.
Voluntary intoxication can never amount to a defence to the offence of Common Assault. This is because common assault is a crime of basic intent. Voluntary intoxication can only amount to a defence to crimes of specific intent.
However, involuntary intoxication can amount to a defence for common assault. For example, if your drink is spiked at a bar and you later get into an altercation with a staff member the defence of intoxication may be employed to exonerate the accused of responsibility of the alleged offence.
The law surrounding assault by beating or battery is complicated and can involve a multitude of different legal issues. If you have been charged or are under investigation for the criminal offence of common assault, it is essential that you take expert legal advice immediately in order to improve the chance of you avoiding the maximum penalty. Old Bailey Solicitors can advise you at every stage of your case, contact us for discreet, sensitive and expert legal advice.