Principles of criminal liability Assault and Battery

Lesson Objectives I will be able to distinguish between common law offences and statutory offences I will be able to distinguish between assault and battery I will be able to describe, using authority, the actus reus and mens rea of assault and mens rea

The nature of the offences Assault and battery are two different offences that together are called common assault. The word ‘common’ is used because the definitions of the offences come from the common law: in other words, all the sources of this law are decided cases The Criminal Justice Act 1988, s39, does not define these offences; it merely states the maximum sentence (6 months’ imprisonment) and establishes that the offences are summary offences, that is triable only in the Magistrates’ Court They are the least serious of the non-fatal offences against the person

the essential distinction between the two offences is that assault is all about fear of suffering harm, whereas battery is the actual harm It therefore follows that a person who is asleep cannot suffer an assault, but can suffer a battery Both these crimes require actus reus and mens rea and it is essential to be able to explain these accurately

Assault The actus reus of assault is any act which causes the victim to apprehend an immediate infliction of unlawful violence. This might be waving a fist at someone in an aggressive manner or aiming a gun at that person The House of Lords in Savage (1991) stated that the mens rea is ‘an intention to cause the victim to apprehend unlawful and immediate violence or recklessness whether such an apprehension be caused’

The actus reus has the following elements: Causing the victim to apprehend violence Immediate violence Unlawful violence In the first element, causing the victim to apprehend violence, there is no need for any physical contact between the defendant and the victim. The emphasis is on what the victim thought was about to happen So even if the defendant meant his threat as a joke, an assault is nevertheless committed if the victim is sufficiently frightened – Logdon (1976) – the court decided that an assault could be by words and actions

Smith v Chief Superintendent of Woking Police Station (1983) – in this case there was an assault by actions alone Words alone or even silence can be assault. This is consistent with the law that was developed to deal with stalkers prior to the Protection from Harassment Act 1997 Ireland (1997) – it was decided that silence or words alone can be an assault

The second element is that the violence threatened must be immediate The second element is that the violence threatened must be immediate. Immediate means as a part of the current activity. This can be seen in Smith v Chief Superintendent, where the immediacy arose as the victim was behind glass, even though the defendant did not have immediate access to her The third element is that the threatened violence must be unlawful. Thus it is not a criminal offence for a policeman to threaten to handcuff someone or restrain them if they do not cooperate during an arrest

The mens rea of assault stated in Savage (1991) was an intention to cause the victim to apprehend unlawful and immediate violence or recklessness whether such an apprehension is caused. This means: Direct or oblique intention as to causing immediate, unlawful fear in the victim that he might suffer some harm Subjective (Cunningham) recklessness as to causing immediate, unlawful fear in the victim that he might suffer some harm

Battery The actus reus of battery is the unlawful application of force to another. The force involved can be very slight: indeed, it is suggested that touching a person’s clothes may be sufficient. Typical examples are hitting someone or throwing a drink at them Thomas (1985) – here it was decided that touching a person’s clothes can be a battery Consent can make the touching lawful. There is an implied consent in normal social situations, such as tapping someone on the shoulder to bring attention to something, or consent to touching in normal sporting activities There is no consent when the touching goes beyond the rules of the sport, although in such cases the consequences are usually more severe than a battery

The force can be applied only by an act not an omission which is why Fagan v MPC (1969) was considered a continuing act. It is also possible to cause a battery by indirect force as in the case of Haystead (2000) – in this case it was decided that indirect force is sufficient for there to be a battery The mens rea of battery was stated by the court in Venna (1976) as ‘proof that the defendant intentionally or recklessly applied force to the person of another.’ Venna (1976) – this case defines the mens rea of battery

This is very similar to the mens rea of assault except as to the intended or reckless consequence Battery only requires the slightest touching. Other offences may be more appropriate if the consequences to the victim are more severe