Common AssaultCommon assault and common battery

S39 CJA 1988

Common law offences

• 2 offences

• Assault

• Battery

• Not defined by statute

• Based on case law – precedent

• Penalty and mode of trial are set by s39 Criminal Justice Act 1988

• Summary offences – Magistrates’ court

• max 6 mths

• Least serious of offences against the person

• http://www.legislation.gov.uk/ukpga/1988/33/section/39

ASSAULT

• ACTUS REUS = any act which causes V to apprehend an immediate infliction of physical violence

• MENS REA =

• an intention to cause V to apprehend unlawful and immediate violence

• OR recklessness as to whether such apprehension be caused

ACTUS REUS OF ASSAULT

1. Causing V to apprehend violence

2. Immediate violence

3. Unlawful violence

• Waving a fist

• Pointing a gun / catapult / knife

• No need for physical contact – emphasis is on what V thought was going to happen

• Threat

1. Apprehension of violence• Logdon 1976

• D, as a joke, pointed a gun at V

• V was terrified

• Until was told it was a replica

HELD

V apprehended immediate physical violence, and D was at least reckless as to whether or not she would be afraid

Lamb 1967BAA! I’m not

scared!

Threatening lettersConstanza 1997

Meade and Belt (1823)

• Group of people sang menacing songs

• Judge held that singing could not constitute assault

• BAD LAW – OVERRULED

WORDS ALONE, EVEN SILENCE CAN CONSTITUTE ASSAULT

WORDS ALONE, EVEN SILENCE CAN CONSTITUTE ASSAULT

Smith v Chief Superintendent of

Woking Police Station 1983

• V at home, in nightdress

• Ground floor flat

• Looked out of window to see D

right up against it, staring in

HELD

D liable for assault because she feared immediate violence even though he couldn’t get in

Ireland 1997

• Making repeat silent telephone calls to 3 Vs

• Caused psychiatric injury to V – apprehended immediate application of force

• Consistent w law being developed at the time to deal w stalkers

• Protection From Harassment Act 1997

Words can take away threat

Tuberville and Savage (1669)

“If it were not assize time I would not take such language”

2. Immediate violence

• The violence threatened must be immediate

• A part of the current activity

• So, in Smith immediacy arose because V was behind glass

• Ireland immediacy of contact caused fear

• Query – would there be an assault if V picked up silent telephone messages?

3. Threatened violence must be unlawful• Not criminal for policeman to threaten to use force to restrain

someone if they do not cooperate during arrest

MENS REA OF ASSAULT

Intention

or subjective recklessness

either

intended to cause V to fear infliction of force

or

was aware of the risk that such fear would be

created and unreasonably took that risk

BATTERY

ACTUS REUS – the unlawful application of force to another

MENS REA – proof that D intentionally or recklessly applied force to the person of another

ACTUS REUS OF BATTERY

• Force can be very slight – touching a person’s clothes might be sufficient

• Typical egs are hitting someone or throwing a drink

Thomas 1985 School caretaker charged with

indecent assault after taking hold of a 12 year old’s skirt

HELD not indecent because no ev. of circ.s making it so, but crtsaid there was no dispute that if you touch someone’s clothes while he or she is wearing them that is equivalent to touching him or her

Consent

Consent can make touching lawful. There is implied consent in normal social situations

tapping someone on the shoulder

level of contact associated with particular sports

Battery only requires the slightest touching.

If consequences are more severe other offences

may be more appropriate

Force

• Force can only be applied by an act not by an omission

• so in Fagan it was essential that the AR was found to be a continuing act, not an omission to remove the car

• Haystead 2000 D punched GF causing her to drop baby on the floor – convicted of battery on the baby – force can be indirect

MENS REA OF BATTERY

• Proof that D intentionally or recklessly applied force to the person of another

• Similar to assault except re. the consequences

Venna 1976 D and friends arrested for public order offences. D struggled violently with arresting officer – judged to be reckless as to whether

he caused harm

Understanding Check

• What is the difference between a common law and a statutory offence?

• Distinguish between assault and battery

• AR assault?

• MR assault?

• AR battery?

• MR battery?

• Authorities?