Assault

Common assault is a summary offence. Assault and battery have no statutory definition. The definition and all elements of the offence of assault are set out in case law. The punishment (maximum 6 months imprisonment) is set out in statute under s.39 Criminal Justice Act 1988.

Definition of assault

Fagan v MPC [1969] 1Q.B. 439 Case summary

The House of Lords set the definition of assault as:

"an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence."

Actus reus of assault:

The victim must apprehend
Immediate
Unlawful
Personal violence

Apprehend

The victim need not be put in fear but must be aware that they are about to be subjected to violence. If they do not anticipate unlawful personal violence there is no assault:

R v Lamb [1967] 2 QB 981 Case summary

Where the victim apprehends immediate unlawful personal violence an assault will be committed even if there was no actual threat of violence:

Logdon v DPP [1976] Crim LR 121 Case summary

The actions of the defendant must cause the victim to apprehend immediate unlawful personal violence. Originally it was thought that only conduct could amount to an assault:

Meade and Belt (1823) 1 Lew. C.C. 184 Case summary

However in R v. Wilson [1955] 1 WLR 493 (Case summary), it was stated obiter that words could amount to an assault. Later case law has accepted that words can amount to an assault:

R v Constanza [1997] Crim LR 576 Case summary

In the following case the court went further and held that silence can amount to an assault:

R v Ireland [1997] 3 WLR 534 Case summary

Words can also negate an assault:

Tuberville v Savage (1669) 1 Mod Rep 3 Case summary

Immediate

Threats of future violence will not amount to an assault. Smith and Hogan's Criminal Law (4th ed.), p.351 states, "There can be no assault if it is obvious the complainant the defendant is unable to carry out his threat, as where D shakes his fist at P who is safely locked inside his car." However, the courts have adopted a more liberal approach to the requirement of immediacy:

R v Constanza [1997] Crim LR 576 Case summary

Smith v Chief Constable of Woking (1983) 76 Cr App R 234 Case summary

Unlawful

If the defendant has a lawful excuse to use force the actions will not amount to an assault. This includes:

Reasonable punishment of a child S.58 Children Act 2004
Where the victim consents
Where the defendant acts in self- defence or prevention of a crime

Personal violence

The term personal violence can be misleading in that the victim need only apprehend the level of force that amounts to a technical battery. Ie any touching will suffice.

Mens rea of assault

The mens rea of assault is intention to cause the victim to apprehend immediate unlawful personal violence or being reckless as to whether such apprehension is caused.(MPC v Fagan [1969] 1Q.B. 439 case summary).

The case of Parmenter [1991] 94 Cr App R 193 (case summary) established that subjective recklessness applies to non-fatal offences against the person.