Understanding Common Assault and Battery

What is Common Assault?

You may be familiar with what an assault is, for most it is believed that an assault is committed where someone attacks another person, perhaps by way of a punch or slap. You may not, however, be aware that a common assault can be committed where no force is actually used against another person.

Common assault is a common law offence, which means it originates from case law and is not enshrined in statute. There is legislation in force, Section 39 of the Criminal Justice Act 1988, which provides the maximum sentence for a common assault as 6-months’ imprisonment. However, how a common assault is committed has therefore been developed by the courts.

Today, common assault can be committed in two different ways, each can be referred to slightly differently:

• Common Assault or a Technical Assault
• Common Assault by Beating or Battery

In this blog, we will look at how each offence is committed and alleviate some of the confusion around the differences between the two offences.

Common Assault/Technical Assault- What is it?

A common assault is committed where a person ‘causes another to fear immediate unlawful force’. It is an offence triable summarily only, which means that offences of common assault can only be heard in the Magistrates’ Court.

When a common assault is committed, there is no actual infliction of any force.

Usually, for a person to ‘fear immediate unlawful force’, verbal threats are made such as ‘I am going to hit you’. However, there are a number of different ways in which a person could be caused fear of immediate unlawful violence, including pointing a gun at another or raising a fist towards them.

What is meant by ‘Fear’?

The term ‘fear’ does not mean a person has to be scared of the unlawful force. A person may be very confident in their ability to deflect an attack or does not feel frightened at all by it. Rather, the definition has been interpreted so the word ‘fear’ can be read as ‘apprehend’. Therefore, fear is not required, apprehension (or for use of a better word, anticipation) of the infliction of immediate unlawful force will suffice.

What is ‘Unlawful Force’?

Much like the above, the term of ‘unlawful force’ is deceptive as it insinuates an ‘attack’ on a person. The term ‘force(ful)’ usually denotes something done with strength or power. However, as will be discussed below, force in the context of assault can be as minimal as a touch. In the circumstances that the touching is not consented to, it is unlawful.

How ‘Immediate’ does the force have to be?

Finally, the threat of force must be ‘immediate’. The case-law in the area suggests that ‘it is likely that violence would result within a reasonably short period of time and without any other intervening occurrence’ (R v Horseferry Road Magistrates’ Court Ex P. Siadatan) (this was in relation to a public order offence, but applicable to common assault). In the case of Smith v Chief Superintendent for Woking Police, the court held that the threat of force was immediate, even where, as in this case, a person was looking through the victims bedroom window, and to inflict the force they would have had to force open the window and climb through it before the force could be applied. The immediacy of the threat therefore, does not have to be instantaneous.

Conditional Assaults

An assault can still be committed in circumstances where that threat is caveated or conditional. This was empathized in the case of Read v Coker in which a person threatened to break the victim’s neck if he did not leave the premises. The court held that in circumstances akin to this, the onus would be on the victim to avert the threat of the force, and would therefore, still amount to an assault.

Mental Element of the Offence

To be guilty of an assault, a person must also have the mental element of the offence, or mens rea. The mental element of the offence is that the defendant either intended or was reckless as to causing the victim to fear the apprehension of immediate unlawful force.

To be reckless as to committing the offence, one must realise the risk of it causing the outcome of causing a person to fear the immediate infliction of unlawful force, but carry on to take that risk anyway. Therefore, recklessness is a lower standard of mental element than intention to bring about that outcome.

Common Assault by Beating or Battery – What is it?

The difference between the offence of Common Assault and Battery is minimal, the only difference being that the force is used rather than threatened.

Therefore, a battery is committed where a person, intentionally or recklessly, inflicts unlawful force on another person.

Unlike with a common assault, the person on whom the force was applied need not apprehend the force. The offence is committed where the force is applied.

What is meant by ‘force’

As noted above, the force used against another person can be incredibly minimal and a person may be guilty of an offence of battery by the slightest of touches.  This offence is often charged using the words “by beating” but the beating in question might be the merest of touches.

In the case of R v Thomas it was found that a battery was committed where a person touched the hem of a person’s skirt. Whilst this is an extreme example of how minimal the force needed to be guilty of battery, it indicates how easily the offence can be committed.

Usually speaking, battery is committed where a person hits or kicks, but it can also be committed by spitting and throwing objects at another person. Where a battery is committed, there is not usually any physical injury caused to the victim. In cases where a physical injury is caused, the police will usually investigate ABH for injuries such as swelling and bruising or reddening and GBH for injuries such as broken bones and big cuts. If you would like to learn more about ABH or GBH, please see our other blog posts about these offences.

What is the mental element of battery?

As with the offence of a technical assault, the mental element or “mens rea” is to ‘intend or be reckless as to inflicting unlawful force.’ Therefore, you must have either intended to apply that force to another, or realised the risk that your actions could result in the infliction of unlawful force, but carried on anyway.

Concluding Remarks

If you are facing a charge of common assault, it is important to seek legal advice as soon as possible. Old Bailey Solicitors is a criminal defence law firm based in London, Sussex, and Surrey, with extensive experience in defending clients who have been accused of both common assault and battery.

Our team of experienced lawyers will work closely with you to build your case, ensuring that your rights are protected throughout the legal process. We understand how stressful and overwhelming facing a criminal charge can be, and we will be with you every step of the way.

Whether you have never been involved in the criminal justice system before, or understand the process and have previous convictions, common assault or battery can have significant consequences for those convicted of the offences. At their most serious, common assault and battery are imprisonable offences and it is therefore important to have the best possible representation to assist you throughout the process.

Please contact us today if you have been charged with, are under investigation or due to attend a voluntary interview under caution for common assault or battery, for a no-obligation discussion about your case and circumstances.