Non-Fatal

Offences
ASSAULT AND BATTERY
Learning outcomes

• Gain an understanding of the legislation and case law in relation to

the offences of assault and battery.

• Identify both the AR and MR elements of assault and battery.

• Be able to distinguish between these offences.

• Critically analyse the law in relation to the non-fatal offences – is

reform overdue?
Non- fatal offences
• Non-fatal offences against the person deal with the infliction of unlawful harm on a person.

• The harm may range from serious injuries to mental harm, or to the mere apprehension of harm
or the simple violation of bodily autonomy.

• In this lesson, we will begin by considering the five main non-fatal offences against the person.

• In order of increasing severity, these offences are,

• Assault (also referred to as ‘common assault’)

• Battery

• Assault occasioning actual bodily harm

• Maliciously wounding or inflicting grievous bodily harm

• Wounding or causing grievous bodily harm with intent.

Offence Nature of offence Sentence

Assault Summary only offence, charged Maximum sentence of six months’

under s.39 of the Criminal Justice imprisonment and/or a fine.
Act 1988

Battery

Assault occasioning actual Either way offence, charged under Maximum sentence of five years’
bodily harm s.47 of the Offences Against the imprisonment.
Person Act (OAPA) 1861

Maliciously wounding or Either way offence, charged under Maximum sentence of five years’
inflicting grievous bodily harm s.20 of the Offences Against the imprisonment.
Person Act (OAPA) 1861

Wounding or causing grievous Indictable only offence Maximum sentence of life

bodily harm with intent. imprisonment
Common Assault
Assault is not defined in an Act of Parliament, as it is a common law offence.

Section 39 of the Criminal Justice Act 1988 classifies assault as a summary offence with a
maximum sentence on conviction of 6 months’ imprisonment, a fine, or both.

The term “common assault” can be used to refer to both assault and battery.

However, in Collins v Wilcock [1984] 3 All ER 374, Lord Goff drew a distinction between
the two: “An assault is an act which causes another person to apprehend the infliction of
immediate, unlawful force on his person; a battery is the actual infliction of unlawful force
on another person.”
Actus Reus of Assault
• The actus reus of an assault is causing another person to apprehend immediate
and unlawful personal violence.
• An assault can be committed in a variety of ways, such as,
• by raising an arm as if to strike someone
• by pointing a knife at a victim
• by shouting threats of violence at a person
• by sending a threatening text message or letter
• making threats over the phone, or
• by making silent telephone calls to a victim.
• The actus reus element of an assault is subjectively assessed.
Apprehension
• If the victim does not apprehend immediate personal violence, there is no assault.

• In the case of Lamb [1967] 2 QB 981, the defendant pointed a revolver at the victim during a game of Russian
roulette. The victim, who was a willing participant in the practical joke, did not think that any harm would
come to him and, thus, did not apprehend any immediate personal violence. Consequently, there could be no
assault.

• In order to satisfy the physical element of an assault, the victim must perceive the conduct and/or words
which cause the apprehension of immediate and unlawful personal violence.

• If the victim does not so perceive the conduct and/or words in question, there is no assault. (For eg. raising a
fist to the back of the victim’s head will not be sufficient if the victim does not actually see the threatening
gesture. Equally, merely speaking the threatening words is not sufficient: the victim must have heard the
threat and apprehend immediate personal violence).
Unlawful

• The anticipated personal violence must be ‘unlawful’.

• The conduct of the defendant might be deemed lawful for a number of reasons,
including: if the defendant is acting in self-defence or the defence of another, if
the conduct is consented to, if the defendant is using a reasonable degree of
force in the lawful chastisement of a child, or in order to effect a lawful arrest.
Assault by words or silence
• An assault may be committed by words alone, although this has not always been the case

• R v Wilson [1955] 1 All ER 744 - Lord Goddard CJ stated that calling out ‘Get out knives’ would amount

to an assault.

• Likewise, words can negate an assault

• Tuberville v Savage (1669) 2 Keb 545 - D said, in laying his hand upon his sword, ‘If it were not assize

time I would not take such language’. His words counteracted his gestures. Despite the traditional view, it

was thought that a verbal assault would probably occur where there was clear evidence of intention to

cause fear.

• R v Light (1857) 21 JP 758

 Menacing Silence
• The law on this issue was settled by the House of Lords in Ireland; Burstow [1998] AC
147.
The defendant in Ireland made repeated silent telephone calls to three women over a period of three months.
The calls were generally made at night and sometimes the women could hear heavy breathing. The three women
suffered psychiatric illness as a result of receiving these telephone calls. The defendant was convicted of three
counts of assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861.

The defendant in Burstow harassed a woman over an eight-month period. He made some silent and some
abusive telephone calls to her, distributed offensive cards in the street where she lived, turned up uninvited at
her home and place of work, surreptitiously took photographs of her, and sent her a menacing note. The woman
was diagnosed with a severe depressive illness and the defendant was convicted of unlawfully and maliciously
inflicting grievous bodily harm contrary to s.20 of the OAPA 1861.

Lord Steyn - ‘[t]he proposition that a gesture may amount to an assault, but that words can never suffice, is
unrealistic and indefensible. A thing said is also a thing done.’
Lord Steyn went further and suggested that silent telephone calls may also amount to an assault because the
silent caller ‘intends by his silence to cause fear and he is so understood’
 Immediacy
• The apprehension must be one of immediate personal violence.

• In Smith v Chief Superintendent of Woking Police Station (1983) - the defendant looked through the windows of the victim’s
bedroom at night. The victim, who was in her nightclothes at the time, was scared. The Divisional Court held that, despite
the closed window between the defendant and victim, there was sufficient apprehension of immediate and unlawful
violence in this case. The victim did not know what the defendant was going to do next, but the personal violence that she
apprehended was held to be sufficiently immediate.

• Since the case of Constanza [1997] 2 Cr App R 492, the immediacy element has been very widely construed - This case
involved a defendant who, amongst other things, followed the victim home from work, made numerous silent telephone
calls to the victim and telephone calls in which he spoke, sent over 800 letters to her home, and sat outside her house in his
car in the early hours of the day. Schiemann LJ held that there would be an assault where the apprehension was of violence
‘at some point not excluding the immediate future’. The immediacy requirement was satisfied in this case as the victim
thought that something could happen at any time.

• Ireland; Burstow (1998) - Lord Steyn held that the immediacy requirement might even be satisfied in a situation involving a
silent caller, because the victim may fear that the silent caller is outside the door. It is sufficient that the victim fears the
Mens Rea of Assault
• The mens rea of an assault is intention or recklessness in relation to the ingredients of the actus reus of an
assault, i.e., intentionally or recklessly causing another person to apprehend immediate and unlawful
personal violence.

• See Logdon v DPP [1976] Crim LR 121.

• The Court of Appeal confirmed in Venna [1976] 1 QB 421 that an assault (and a battery) can be committed
recklessly. In this case, the defendant kicked out during a struggle with police officers and fractured the hand
of an officer. He was convicted of assault occasioning actual bodily harm on the basis that he had recklessly
applied force to the police officer. Recklessness was given its subjective Cunningham meaning in Venna
(1976).

• The Court of Appeal in R v Spratt [1990] 1 WLR 1073 held that the subjective standard of recklessness is
applied to non-fatal offences. This was confirmed in R v Savage; R v Parmenter [1991] 4 All ER 698.
Battery
• Battery (also described as ‘assault by beating’) is a statutory offence which is charged
contrary to Section 39 of the Criminal Justice Act 1988.

• The definition of battery is found in common law. A person commits a battery if he

intentionally or recklessly inflicts unlawful force on another person: Collins v Wilcock
(1984).
Actus Reus of Battery

• The actus reus of a battery is the infliction of unlawful force on another person.

• Battery differs greatly from an assault because it requires force to actually be

inflicted on the victim and there is no requirement that the victim apprehend
that they are about to be struck. Thus, the elements of an assault are not
inherent within a battery.
 Force
• A battery requires the actual application of physical force to the victim; in other words,
‘the blow has to land’ (per Keith J in Nelson [2013] EWCA Crim 30 at [3]).

• Unlike an assault, a battery does not require the victim to apprehend violence, so the
victim need not perceive the application of force before it occurs: a blow from behind is
sufficient actus reus for battery but would not be for an assault.

• The degree of force required for a battery is very slight and no harm to the person is
necessary
Unlawful
• As the actus reus of battery is so widely drawn, there are inevitably a number of exceptions to the
general principle of liability for the least touching of another.

• For example, the infliction of force is deemed ‘lawful’ where a police officer lawfully arrests a person,
where a child is subjected to reasonable punishment, and where reasonable force is used in self-
defence or the prevention of crime. In addition to these specific exceptions, consent is a defence to
battery.

• The law would be absurd if every instance of touching resulted in a conviction for battery.

• Thus the unlawful force has to go beyond the physical contact of everyday life – Collins v Wilcock [1984]
3 All ER 374; Wilson v Pringle [1986] 3 WLR 1.

• The case of Collins v Wilcock (1984) provides that this defence includes implied consent which,
Hostility Requirement?
Essentially, people have to accept the “hustle and bustle” of everyday life. People are
bound to brush against you or accidentally bump into you on the bus or on the subway. We
implicitly consent to reasonable force in social situations such as jostling on a busy street.

However, the force applied need not be aggressive nor hostile. It need only consist of
unwanted physical contact, not harm. An unwanted kiss under the mistletoe perhaps?
Collins v Wilcock [1984] 1 WLR 1172

• This case involved a police officer, Wilcock, who took hold of a woman’s arm in order to
detain her for questioning. The woman, Collins, scratched the police officer’s arm and
was arrested for assaulting a police officer in the execution of her duty. Collins argued
that Wilcock had not been acting in the execution of her duty, as she had gone beyond
the scope of that duty in grabbing her arm.

• The Divisional Court considered that the conduct of the police officer was unlawful and
amounted to a battery as it went beyond the generally acceptable standards of physical
contact.
Collins v Wilcock [1984] 1 WLR 1172
Robert Goff LJ in Collins v Wilcock - “Generally speaking, consent is a defence to battery, and
most of the physical contacts of ordinary life are not actionable because they are impliedly
consented to by all who move in society and so expose themselves to the risk of bodily contact.
So, Nobody can complain of the jostling which is inevitable from his presence in, for example, a
supermarket, an underground station or a busy street; nor can a person who attends a party
complain if his hand is seized in friendship, or even if his back is, within reason, slapped.
As such,
• Self-defence or defence of another
• Reasonable chastisement of a child
• Reasonable force used as part of a lawful arrest
are all exceptions
 Direct or indirect
• Whilst it is clear that the actus reus of battery may be committed by direct bodily contact between two

people, for example by striking a person’s body with a fist, such close physical contact is not always necessary.

• For instance, a battery may also be committed by striking another person with an instrument or by throwing

an object at a person.

• Indirect battery can be applied using an implement/vehicle/animal etc.

• R v Martin (1881) 8 QBD 54 - he defendant, intending to cause terror and alarm, ran out of a theatre,

extinguishing the lights. He placed an iron bar across the exit to the theatre. The audience panicked and
rushed to the exit. A large number of people were seriously injured in the crush and the defendant was
convicted of maliciously wounding or inflicting GBH, contrary to s.20 of the Offences Against the Person Act
1861. Although the defendant in this case was not charged with battery, the authority demonstrates that the
actus reus requirement of infliction of force may be widely construe
 Direct or indirect
• DPP v K (a minor) [1990] 1 All ER 331 - The defendant in this case was a schoolboy who took some sulphuric acid to the toilets in

order to test the reaction of the acid with toilet paper. On hearing footsteps outside, he panicked and threw the acid in a hand

drier, the nozzle of which was pointing upwards. When another pupil used the hand drier, acid was blown into his face. The

Divisional Court held that the defendant was guilty of assault occasioning actual bodily harm, contrary to s.47 of the Offences

Against the Person Act 1861.

• Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 – the defendant punched a woman while she was holding a 12-

month-old child. As a result of the punches, the woman dropped the child, who hit his head on the floor. The Divisional Court held

that the offence of battery was available in such circumstances, demonstrating that the defendant need not have bodily contact

with the victim through his body, but it is sufficient that he have direct physical contact with the victim through a medium

controlled by his action. In this case, the medium in question was in fact another person: the woman holding the child.

• R v Thomas [1985] Crim LR 677 - The defendant touched the bottom of a girl’s skirt and rubbed it, the Court of Appeal took the

view that ‘if you touch a person’s clothes whilst he is wearing them that is equivalent to touching him’ – touching constituted

battery
Positive Act
• The courts have stated that assault and battery can only be committed by a positive act
and not by an omission.
How did the courts get around this issue in Fagan v MPC [1968] 3 All ER 442?

What of DPP v K (a minor) [1990] 1 All ER 331?

And DPP v Santana-Bermudez [2003] All ER (D) 168 (Nov)?

• Fagan v MPC (1969) - the Divisional Court avoided basing the liability of the defendant
on an omission to act by creating the ‘continuing act’ theory. The defendant’s positive act
was driving onto the police officer’s foot. When he failed to move the car from his foot,
the act was continuing. The Court based the defendant’s liability upon this positive act.

• DPP v Santana-Bermudez [2003] - Relying on Miller [1983] 2 AC 161, Roberts (1971) 56

Cr App R 95, and DPP v K (a minor)(1990) 91 Cr App R 23, held that ‘where someone (by
act or word or a combination of the two) creates a danger and thereby exposes another
to a reasonably foreseeable risk of injury which materialises, there is an evidential basis
for the actus reus of an assault occasioning actual bodily harm’. The Court circumvented
the question as to whether or not an assault or battery can be committed by omission
Mens Rea of Battery
• The mens rea of battery is intention or recklessness in relation to the infliction of
unlawful force on another person (Venna (1976) and Savage; Parmenter (1992)).

• Just as with assault, the subjective Cunningham standard of recklessness is applied.

However, for a conviction for battery to result, the defendant must have intended or
foreseen the actual infliction of force, not just the victim’s apprehension of force.
 CONCLUSION:
• Assault and battery are both common law offences but according to s.39 of the Criminal Justice Act 1988 they are summary
offences, punishable by up to 6 months’ imprisonment, a fine, or both.
• Assault is any act by D which causes V to apprehend immediate and unlawful force.
• Words alone can amount to an assault – R v Wilson [1955] 1 All ER 744.
• Words can also negate an assault – Tuberville v Savage (1669) 2 Keb 545.
• Even a menacing silence can amount to an assault – R v Ireland and Burstow [1998] AC 147.
• The immediacy requirement is interpreted very loosely – Smith v Chief Superintendent, Woking Police Station [1983] Crim LR
323.
• The mens rea for assault is intention or recklessness as to whether V apprehends immediate and unlawful force.

• Battery is the actual application of unlawful force upon another person.

• Battery must go beyond the hustle and bustle of everyday life - Collins v Wilcock [1984] 3 All ER 374.
• The unlawful force need not be aggressive or hostile. It need only consist of unwanted touching.
• The unlawful force may be applied directly or indirectly – DPP v K (a minor) [1990] 1 All ER 331.
• Touching of clothing will amount to a battery – R v Thomas [1985] Crim LR 677.
• The mens rea for battery is an intention or recklessness as to whether unlawful force is inflicted.