Common assault
Encyclopedia
Common assault was an offence under the common law
of England, and has been held now to be a statutory offence in England and Wales
. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant
. It was thought to include battery
. In England and Wales, the penalty and mode of trial for this offence is now provided section 39 of the Criminal Justice Act 1988, and it has been held that the offence should be alleged as contrary to the statute because of this. It was also held that common assault and battery are two distinct offences, so that a charge that the accused "assaulted and battered" another person would be bad for duplicity
(the rule against charging more than one offence in a single count).
.
A person commits an assault if he does 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.
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 though the victim may have a phobia
although, if the defendant is aware of the psychological difficulty, 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 although. 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 he would beat the living daylights out of you but for the presence of a police officer watching them both, the victim is supposed to understand that there is no immediate danger. 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.
In Fagan v. Metropolitan Police Commissioner
[1968] 1 QB 439 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, 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. 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.
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.
.
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
).
, 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.
However 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:
(c.37) creates the distinct offence of racially or religiously aggravated common assault.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England, and has been held now to be a statutory offence in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. It was thought to include battery
Battery (crime)
Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
. In England and Wales, the penalty and mode of trial for this offence is now provided section 39 of the Criminal Justice Act 1988, and it has been held that the offence should be alleged as contrary to the statute because of this. It was also held that common assault and battery are two distinct offences, so that a charge that the accused "assaulted and battered" another person would be bad for duplicity
Duplicity (law)
Duplicity is a legal term used to describe the error committed when the charge on an indictment describes two different offences. An indictment may contain more than one count, but each count must allege only one offence, so that the defendant can know precisely what offences he is accused of...
(the rule against charging more than one offence in a single count).
Statute
Section 39 of the Criminal Justice Act 1988 provides:Ingredients of the offence
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 lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
.
A person commits an assault if he does 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.
Actus reus
Both in the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and under statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
of a common assault is committed when one person causes another to apprehend or fear that force
Force
In physics, a force is any influence that causes an object to undergo a change in speed, a change in direction, or a change in shape. In other words, a force is that which can cause an object with mass to change its velocity , i.e., to accelerate, or which can cause a flexible object to deform...
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 though the victim may have a phobia
Phobia
A phobia is a type of anxiety disorder, usually defined as a persistent fear of an object or situation in which the sufferer commits to great lengths in avoiding, typically disproportional to the actual danger posed, often being recognized as irrational...
although, if the defendant is aware of the psychological difficulty, 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 although. 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 he would beat the living daylights out of you but for the presence of a police officer watching them both, the victim is supposed to understand that there is no immediate danger. 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
Mobile phone
A mobile phone is a device which can make and receive telephone calls over a radio link whilst moving around a wide geographic area. It does so by connecting to a cellular network provided by a mobile network operator...
is used to transmit the threat (whether orally or by SMS
SMS
SMS is a form of text messaging communication on phones and mobile phones. The terms SMS or sms may also refer to:- Computer hardware :...
) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.
In Fagan v. Metropolitan Police Commissioner
Fagan v. Metropolitan Police Commissioner
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, [1968] 3 All ER 442, [1968] 3 WLR 1120, 52 Cr App R 700, DC is a leading case that illustrates the requirement of concurrence of actus reus and mens rea in order to establish an offence under the criminal law of England and...
[1968] 1 QB 439 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
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
was a continuing act and the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
was formed during the relevant time (see concurrence
Concurrence
In Western jurisprudence, concurrence is the apparent need to prove the simultaneous occurrence of both actus reus and mens rea , to constitute a crime; except in crimes of strict liability...
). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete.
In R v. Ireland, 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. 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.
Mens rea
The mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
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.
Defences
Self defence is available when reasonable force is used to prevent harm to self or another.Alternative verdict
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 1967Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
.
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
Domestic Violence, Crime and Victims Act 2004
The Domestic Violence, Crime and Victims Act 2004 is an Act of the Parliament of the United Kingdom. It is concerned with criminal justice and concentrates upon legal protection and assistance to victims of crime, particularly domestic violence...
).
Whether it is a statutory offence
In DPP v. Taylor, DPP v. Little [1992] 1 QB 645, 95 Cr App R 28, it was held that common assault is a statutory offence, contrary to section 39 of the Criminal Justice Act 1988. This decision was criticised and in Haystead v DPP 164 JP 396, DC,http://www.bailii.org/ew/cases/EWHC/QB/2000/181.html the Divisional court expressed the obiter opinion that common assault remains a common law offence.Mode of trial and sentence
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, it is a summary offence
Summary offence
A summary offence is a criminal act in some common law jurisdictions that can be proceeded with summarily, without the right to a jury trial and/or indictment .- United States :...
. However, where section 40 of the Criminal Justice Act 1988 applies, it can be an additional charge on an indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
. It is usually tried summarily.
However 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
Standard scale
The standard scale is a system whereby financial criminal penalties in legislation have maximum levels set against a standard scale. Then, when inflation makes it necessary to increase the levels of the fines the legislators need to modify only the scale rather than each individual piece of...
, or both.
See Crown Prosecution Service Sentencing Manual for case law on sentencing. Relevant cases are:
- R v Nottingham Crown CourtNottingham Crown CourtNottingham Crown Court, or more formally the High Court of Justice and Crown Court, Nottingham is a Crown Court and High Court of Justice in Nottingham, England.-Description:...
ex parte Director of Public Prosecutions [1996] 1 Cr App R (S) 283 - R v Dunn [2003] 2 Cr App R (S) 90
Racially or religiously aggravated offence
In England and Wales, section 29(1)(c) of the Crime and Disorder Act 1998Crime and Disorder Act 1998
The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998...
(c.37) creates the distinct offence of racially or religiously aggravated common assault.
Status of offence
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 slight. No injury is required to prove battery.See also
- BatteryBattery (crime)Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
- Assault occasioning actual bodily harm
- Grievous bodily harmGrievous bodily harmGrievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....