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Common 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 for assault (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 the victim does 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:
 
 
R v 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 R v Parmenter [1991] 94 Cr App R 193 (case summary) established that subjective recklessness applies to non-fatal offences against the person.
 
 
The law of common assault