H418/01 - Assault and battery

Two offences protecting the person

Assault and battery protect a person's bodily security before serious injury occurs. In everyday speech, an assault often means a physical attack. In precise legal analysis, assault means causing someone to apprehend immediate unlawful personal violence; battery means applying unlawful force to another person. “Apprehend” means anticipate or expect, rather than necessarily feel frightened. “Force” includes a slight touch: neither offence requires an injury.

An angry person who raises a fist so that another expects an immediate punch may commit assault. If the punch lands, there may also be battery. A person struck unexpectedly from behind may suffer battery without first apprehending violence. One incident can therefore involve both offences, but the elements must be considered separately.

The definitions developed at common law, through judicial decisions. Section 39 of the Criminal Justice Act 1988 provides the statutory framework for common assault and battery, ordinarily summary offences dealt with in the magistrates' court. It does not itself spell out their definitions. This is a useful connection between legislation and precedent: reading only section 39 does not supply all the substantive law. Special statutory offences and procedural exceptions exist, so “summary” should not be turned into a claim that every assault-related case must be heard only there.

For each offence separate actus reus, the prohibited conduct and result, from mens rea, the required state of mind. “He was angry” describes a possible motive. It does not prove either set of elements. A justified act, such as reasonable force in lawful self-defence, is not unlawful merely because it is deliberate; the detailed defence is studied separately.

Apprehending immediate unlawful violence

The actus reus of assault concerns what the defendant causes the victim to anticipate. The prosecution must establish apprehension of personal violence that is unlawful and immediate. A threat against an empty room causes nobody to apprehend violence. A victim who knows a supposed weapon cannot hurt them may not anticipate the threatened contact; what matters is the victim's actual understanding, not simply the defendant's gesture.

Words can create apprehension, remove it, or qualify it. Compare “I am hitting you now” said while advancing with “I will hit you next month” from someone who is leaving. The first supports immediacy; the second, on those facts, does not. A statement about the future does not automatically defeat assault if the surrounding conduct still conveys violence now. In Tuberville v Savage (1669), words accompanying a threatening gesture made clear that the speaker would not attack on that occasion. The significance is that gesture and words are assessed together.

In R v Ireland (1997), repeated silent telephone calls caused psychiatric illness. The House of Lords held that silence could constitute an assault: the recipient could understand the call as a threat. It did not establish that every silent call is criminal or settle every factual question about immediacy. A caller's location, history and what the recipient anticipates remain relevant. Immediate does not mean a mathematical requirement of contact in the next second; it still excludes a threat understood solely as distant future violence.

An original example: Lia tells Omar, “I'm outside your door; open it and I will punch you,” while rattling the handle. Omar expects an attack at once. The facts support assault even though the door prevents a blow. Change the facts: Lia is known to be abroad and says only that she will attack after returning in six months. That is not apprehension of immediate violence on those facts, although other offences may be relevant.

Unlawful contact and indirect force

The actus reus of battery is the application of unlawful force to another person. Contact with a person's clothing while it is worn can count; injury and skin-to-skin touching are unnecessary. The law does not criminalise all ordinary contact. Jostling normally accepted in a busy queue or a freely accepted handshake is different from an unwanted grab. Context and lawful justification matter.

Collins v Wilcock (1984) concerned an officer who held a woman's arm while seeking to question her, without a lawful power to detain her in that way. The court distinguished ordinary acceptable social contact from an unlawful restraint. Its importance is protection of bodily autonomy: being a police officer does not make every physical intervention lawful. It also explains why ordinary everyday touching is not automatically battery.

Force may be indirect. Throwing liquid at someone, using an object to strike them or setting a mechanism that causes contact can apply force without the defendant's hand touching the victim. DPP v K (1990) involved acid put into a hand dryer which injured another pupil. The case illustrates indirect force; it does not remove the need to prove the appropriate fault.

Usually battery involves a positive act. A recognised duty may matter where a defendant creates a danger and fails to address it; there is no general criminal duty to rescue everybody. In Fagan v Metropolitan Police Commissioner (1969), driving onto an officer's foot was initially accidental. The defendant then deliberately left the wheel there. The court treated the contact as a continuing act, so the later fault coincided with it. This is different from saying that all failure to move is battery.

Original example: Kit intentionally throws a cup of water onto Jo's coat while Jo is wearing it. Without consent or justification this is battery even if Jo is unhurt. If the cup spills because someone unforeseeably knocks Kit's arm, the contact alone does not establish Kit's criminal fault.

Fault for the particular offence

The mens rea of each offence is intention or subjective recklessness as to its own prohibited result. For assault, the defendant intends, or consciously takes the risk of causing, apprehension of immediate unlawful violence. For battery, the defendant intends, or consciously takes the risk of applying, unlawful force. Neither requires an intention to injure. An intention to make someone afraid is not automatically an intention to touch them, and vice versa.

Subjective recklessness means actual awareness of a relevant risk and taking it unjustifiably in the circumstances known to the defendant. It is not enough that a careful person would have noticed the risk. R v Venna (1976) confirmed that recklessness can suffice for battery, rejecting an intention-only approach. The distinction from negligence is important: carelessness without actual awareness does not by itself establish the required fault for these offences.

Proof normally comes from conduct and circumstances. If Sam swings a heavy bag through a packed queue, acknowledges that it may hit people and continues without reason, the facts support recklessness as to contact. If an unforeseeable strap failure causes an accidental strike, fault may be absent. The victim's alarm or injury is evidence of the result, not conclusive proof of Sam's state of mind.

Mens rea must coincide with the prohibited conduct. Fagan supplies one route where an initially innocent act continues after fault develops. Suppose Erin unknowingly rests a chair on a person's foot, notices their pain and deliberately keeps pressing. The continuing force can coincide with intention. If a completed accidental contact ends before Erin becomes aware of it, later pleasure about it cannot retrospectively make the accident a battery.

Finally, a defendant may have the required contact or apprehension fault yet rely on a lawful defence. The prosecution must prove the offence; once a defence is properly raised, apply its own requirements rather than treating a harmful outcome as automatically decisive. This connects bodily protection with the criminal law's demand for fault and justification.

Quick recap

Assault concerns apprehension; battery concerns contact. Both require unlawfulness and their own intention or recklessness. Analyse the words, conduct, victim's understanding and defendant's awareness separately before reaching a conclusion.