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Common assault is an offence in English law. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. In England and Wales, the penalty and mode of trial for this offence is provided by section 39 of the Criminal Justice Act 1988.
Section 39 of the Criminal Justice Act 1988 provides:
Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both. [1]
On 13 September 2018, the Assaults on Emergency Workers (Offences) Act 2018 received Royal Assent. This added a subsection which states any common assault or battery on an emergency worker (as defined in the Act) is triable either way and subject to a maximum of 12 months' imprisonment if tried on indictment. [2]
Section 39 of the Criminal Justice Act 1988 does not contain a definition of the expression "common assault" that appears there. What the offence actually consists of must be determined by reference to case law.
A person commits an assault if he performs an act (which does not for this purpose include a mere omission to act) by which he intentionally or recklessly causes another person to apprehend immediate unlawful violence. [3]
Both in the common law and under statute, the actus reus of a common assault is committed when one person causes another to apprehend or fear that force is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable, even in situations where the victim may have a phobia, however if the defendant is aware of the victim's fears and carries out the action anyway, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that they "would beat the living daylights out of you if not for the presence of a police officer", the victim is supposed to understand that there is no immediate danger (cf. Tuberville v Savage's "If it were not assize time I would not take such language from you"). But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a mobile phone is used to transmit the threat (whether orally or by SMS) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.[ citation needed ]
In Fagan v Metropolitan Police Commissioner [4] a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman's foot and, when asked to remove the car, said "Fuck you, you can wait" and turned off the ignition. Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault. Albeit accidentally, the driver had caused his car to rest on the officer's foot. This actus reus was a continuing act and the mens rea was formed during the relevant time (see concurrence). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete.
In R v Ireland , [5] it was found that causing a person to apprehend violence can be committed by way of action or words. Words can also mean that otherwise threatening actions are rendered not capable of being an assault, as in the case of Tuberville v Savage . [6] In that case, the plaintiff told the defendant (while putting his hand on his sword) that he would not stab him, because the circuit judge was visiting town for the local assizes. On that basis, the defendant was deemed to have known that he was not about to be injured, and it was held that no assault had been committed by the plaintiff (which would otherwise have justified the defendant's allegedly pre-emptive strike).
The "immediacy" requirement has been the subject of some debate. The leading case, again, is R v Ireland. Therein, the House of Lords held that the making of silent telephone calls could amount to an assault if it caused the victim to believe that physical violence might be used against him in the immediate future. One example of "immediacy" adopted by the House in that case was that a man who said, "I will be at your door in a minute or two," might (in the circumstances where those words amounted to a threat) be guilty of an assault.
See also R v Constanza .
The mens rea is that this fear must have been caused either intentionally or recklessly. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly.
Self-defence is available when reasonable force is used to prevent harm to self or another. Prevention of a greater crime or with the purpose of aiding a lawful arrest is also known as The Public Defence. The Private Defence or defence of property also may be used as an argument. These arguments are not strictly defences but justifications for a certain level of force. [7]
Consent also negates assault (but not more serious offences, per R v Brown ). Ordinary, harmless contact is considered of the sort one might encounter while travelling on a busy bus or train or trying to get to the bar in a packed pub is not considered assault, nor are genuine tackles in contact sports like football or rugby. Preventing someone accidentally endangering themselves would also generally not amount to assault. [8]
The original effect of sections 39 and 40 of the Criminal Justice Act 1988 was that common assault was not available as an alternative verdict under section 6(3) of the Criminal Law Act 1967. [9]
Common assault is now available as an alternative verdict under section 6(3) of the Criminal Law Act 1967, by virtue of section 6(3A) of that Act (which was inserted by section 11 of the Domestic Violence, Crime and Victims Act 2004).
In DPP v. Taylor and DPP v. Little [10] it was held that common assault is a statutory offence, contrary to section 39 of the Criminal Justice Act 1988. This decision was criticised [11] [12] [13] and in Haystead v DPP [14] the Divisional court expressed the obiter [15] opinion that common assault remains a common law offence.
In England and Wales, it is a summary offence. However, where section 40 of the Criminal Justice Act 1988 applies, it can be an additional charge on an indictment. It is usually tried summarily.[ quantify ]
However, if it is tried, it is punishable with imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
See Crown Prosecution Service Sentencing Manual for case law on sentencing. Relevant cases are:
In England and Wales, section 29(1)(c) of the Crime and Disorder Act 1998 (c.37) creates the distinct offence of racially or religiously aggravated common assault.
This is the least serious assault. It is not at all uncommon for more serious assault charges to be reduced to common assault in "plea-bargaining" by prosecutors to avoid the additional expense of a Crown Court trial should the defendant elect for same. In real terms, the degree of fear or the level of injury required for a conviction can be unproven. No injury is required to prove battery. [18]
An assault is the illegal act of causing physical harm or unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may result in criminal prosecution, civil liability, or both. Additionally, assault is a criminal act in which a person intentionally causes fear of physical harm or offensive contact to another person. Assault can be committed with or without a weapon and can range from physical violence to threats of violence. Assault is frequently referred to as an attempt to commit battery, which is the deliberate use of physical force against another person. The deliberate inflicting of fear, apprehension, or terror is another definition of assault that can be found in several legal systems. Depending on the severity of the offense, assault may result in a fine, imprisonment, or even death.
Bodily harm is a legal term of art used in the definition of both statutory and common law offences in Australia, Canada, England and Wales and other common law jurisdictions. It is a synonym for injury or bodily injury and similar expressions, though it may be used with a precise and limited meaning in any given jurisdiction. The expression grievous bodily harm first appeared in a statute in Lord Ellenborough's Act (1803).
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft by its inherently violent nature ; whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words of Germanic origin, from Common Germanic raub "theft".
The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property.
Battery is a criminal offense involving unlawful physical contact, distinct from assault, which is the act of creating apprehension of such contact.
Assault occasioning grievous bodily harm is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The distinction between these two sections is the requirement of specific intent for section 18; the offence under section 18 is variously referred to as "wounding with intent" or "causing grievous bodily harm with intent", whereas the offence under section 20 is variously referred to as "unlawful wounding", "malicious wounding" or "inflicting grievous bodily harm".
In English criminal law, public nuisance is a act, condition or thing that is illegal because it interferes with the rights of the general public.
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.
Self-defence is a defence permitting reasonable force to be used to defend one's self or another. This defence arises from both common law and the Criminal Law Act 1967. Self-defence is a justification defence rather than an excuse.
Murder is an offence under the common law legal system of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker, chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises not only in criminal law but also in civil law, where it is relevant to contract law and trusts law.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
Conspiracy to defraud is an offence under the common law of England and Wales and Northern Ireland.
An offensive weapon is a tool made, adapted or intended for the purpose of inflicting physical injury upon another person.
English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.
The publication of an obscene libel was an offence under the common law of England. Prior to the abolition by section 1 of the Criminal Law Act 1967 of the distinction between felony and misdemeanour, it was regarded as a misdemeanour. It has been abolished in England and Wales and Northern Ireland.
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods, and trespass to land.
Rape is a statutory offence in England and Wales. The offence is created by section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.
Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.
In England and formerly in Wales, battery punishment by parents of their minor children is lawful by tradition and explicitly under common law by R v Hopley [1860] 2F&F 202 :
By the law of England, a parent ... may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.