Old Bailey Solicitors

Assault vs Battery: What is the Difference?

Assault v Battery: What is the Difference?

The phrases ‘assault’ and ‘battery’ are commonly used to reference a single crime however, they are two different charges.

What is an assault?

An assault is committed when a person intentionally or recklessly causes someone to fear that unlawful force is going to be inflicted upon them. This means that inciting fear can be considered assault, even if there was no contact between the accused and the victim.

In order to be convicted of assault, the prosecution needs to prove that the victim reasonably believed that they would be harmed or offended by the accused’s conduct. In other words, the victim must be aware of the accused’s potential to harm or offend them. The prosecution must also prove that the accused intended to cause fear of immediate violence to the victim.

An example of an assault is mimicking the act of hitting, punching or kicking another person without actually making contact with them.

What is battery?

Unlike assault, battery occurs when there is unlawful contact between the accused and the victim. Battery is committed when someone intentionally or recklessly applies unlawful force to another person.

In order to be convicted of battery, the prosecution needs to prove that the accused intended to apply unlawful force to the victim. There is no requirement that the victim suffered a personal injury or bodily harm, only that contact was made.

An example of battery is slapping someone in the face during an argument.

What is the punishment for assault and battery?

Common assault (including battery) is dealt with under section 39 of the Criminal Justice Act 1988. The sentence for assault or battery varies depending on the seriousness of the crime and the particular circumstances of the offence and the offender. Sentences for assault and battery range from six months imprisonment, and/or a fine up to £5,000.

Is there a defence to assault and battery?

A number of defences may apply in relation to a charge of assault and/or battery:


You are legally entitled to use reasonable and proportionate force to defend yourself and your property. If you are attacked or your property threatened, you may use a necessary amount of force to defend yourself. For example, retaliating to an attack to protect yourself or someone else is a defence.

However, self-defence only extends to reasonable reactions to an imminent threat. The imminent requirement is crucial to ensure that the defence does not extend to cover aggressive, as opposed to defensive force.

A court considering whether a defendant has successfully raised and argued self-defence will consider and apply both a subjective and objective test. The subjective test asks if the defendant genuinely believed that it was necessary to use force to defend themself from an imminent attack on themself or others or to protect property? While the objective test asks whether the degree of force used was reasonable in the circumstances.


Duress is a defence that may be available where the accused committed an assault or battery only because they were threatened with death or serious personal injury.

There is a two-part test to establish the defence of duress which includes a subjective test and an objective test. The subjective test asks, was the accused compelled to act as they did as a result of what they honestly believed was a risk of serious physical injury? The objective test asks would a reasonable person sharing the characteristics of the accused, have responded in the same way to such threats?


A person cannot accuse another of assault or battery if they consented to the force being used against them. A common example of this would be participating in contact sports, such as American football.

Consent can be either implied or expressed. This means that one can consent to an action without explicitly granting permission; it is simply inferred from the situation. From this, it must be drawn from the circumstances or the action itself whether the law would allow consent to be given. This contrasts with expressed consent where written or verbal permission is needed.

What to do if you have been accused of assault or battery?

The law surrounding violent offences is complicated.  If you have been charged or are under investigation, it is essential that you take immediate legal advice. Our specialist team can advise you at every stage of your case, from the first stage of the criminal investigation at the police station, through to the Magistrates’ court and the Crown court. Please contact us for discreet, sensitive and expert advice.

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Kelsey Reid


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