Ask the ordinary woman on the street what she understands by the word “assault” and you will probably find an array of misconceptions. The word assault is generally taken to denote any kind of physical harm inflicted on one person by another: from minor bruising to broken bones. As law students, we will come to know better; we will come to realise that non-fatal offences against the person are too complex and wide-ranging to be lumped together under one simple heading. By the time you have finished reading this article, you should be able to explain the key differences between assault and battery.
The Big Picture
Non-fatal offences against the person is a broad category of criminal offences, covering all kinds of harm done to a human being short of murder (which, of course, would be classified as a fatal offence against the person). The category includes very minor harm (common battery), reasonably serious harm (actual bodily harm, or ABH), and very serious harm (grievous bodily harm, or GBH). It also includes common assault which, as we shall soon discover, involves no physical harm whatsoever.
For the purposes of this article, we will narrow our discussion to just two non-fatal offences: common assault and common battery. Consider the diagram below:
Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.
It is vital to note that section 39 does not provide the definitions of common assault and battery; it does not lay-out the actus reus and mens rea requirements of either offence. The only purpose of section 39 is to recognise that these common law offences exist, and to set out the sentencing parameters.
The definitions of both assault and battery, therefore, come from case law. In Collins v Wilcock (1984) Goff LJ provided the standard definitions:
The law draws a distinction…between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person.
The actus reus of assault
There are two actus reus requirements for assault:
- There must be some kind of act;
- Which causes the victim to apprehend the infliction of immediate, unlawful force.
Essentially, what the prosecution will have to prove beyond reasonable doubt is that D performed some kind of act which caused V to be afraid that he was about to be subjected to force.
In Lodgon v DPP (1976), D opened a drawer in his office to reveal what he claimed to be a loaded gun. D showed the weapon to V, who feared that D was about to fire the gun at him. Even though the gun was, in fact, a fake; the court held that D’s actions were sufficient to amount to an assault.
The requirement that there be “some kind of act” has been interpreted very broadly. In R v Ireland (1997) D made silent telephone calls to a number of women. He did not speak, he did not make a sound, he only breathed down the receiver. The House of Lords decided that this was enough to amount to an assault:
The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.
The second requirement – that the victim apprehends immediate unlawful force – excludes situations where it is obvious that the defendant either cannot or will not use force. In R v Lamb (1967) D pointed a gun at someone who knew that it was unloaded. Since D could not possibly have fired a bullet into V, there was no assault.
Fear of immediate force is necessary, although this requirement is not read literally. Immediate, for our purposes, does not mean instantaneous, but imminent.
In Smith v Chief Superintendent of Woking Police Station (1983) D trespassed onto V’s garden and peered through her window. It was roughly 11pm and V was in her nightclothes. As one would expect, the sight of an unknown stranger peering through her window caused her to fear the imminent application of unlawful force. She was afraid that D would break into her property and cause her some harm.
Although the defendant in Smith did not fear that force was going to be used against her at the precise moment when she spotted the defendant, it was sufficient for an assault conviction that she feared the application of force in the very near future.
The actus reus of battery
The actus reus of battery is the infliction of some kind of unlawful force on another person.
In Collins v Wilcock (1984) a police officer unlawfully took hold of a woman’s arm to stop her from walking away: since the officer was not attempting to arrest the victim, he had no right to physically restrain her. The High Court decided that the police officer had committed a battery:
It has long been established that any touching of another person, however slight, may amount to battery…every man’s person being sacred, and no other person having a right to meddle with it, in any the slightest manner.
In R v Thomas (1985) D touched the bottom of a woman’s skirt and rubbed it. The Court of Appeal decided that:
There could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him.
Those two cases: Collins and Thomas make it perfectly clear that a battery is committed even where the touching is only very minor; and the relatively minor nature of the offence is reflected in the maximum penalty on conviction: six months imprisonment.
The issue of consent
What about those cases where V consents to D’s touching? For example, if Laura consents to Jennifer giving her a hug, is this conduct classified as battery?
In R v Slingsby (1995) D and V engaged in “vigorous” consensual sexual intercourse, during the course of which D’s signet ring caused injury to the victim. This injury led to blood poisoning, which led to the victim’s death. The victim’s consent meant that D was not guilty of battery or any other form of assault. Remember, the force must be unlawful and if two mature adults consent to sexual intercourse, however “vigorous”, there can be no battery.
There are also situations in which the courts will imply consent. For example, if Deon is visiting central London and needs to ride the Tube during rush hour, it is very likely that he will be crammed into an overheating carriage in direct contact with other commuters. Is everybody on the train going to be guilty of battery because they have failed to hold the following conversation:
I say, Old Boy, it’s rather cramped in this carriage. Do you mind if I press myself against you?
Of course, it would be completely unrealistic to expect every passenger to obtain explicit consent from every other passenger.
This issue was tackled in Collins v Wilcock (1984) where it was held that the ordinary “jostlings” of everyday life were not battery:
Although we are all entitled to protection from physical molestation, we live in a crowded world in which people must be considered as taking on themselves some risk of injury (where it occurs) from the acts of others which are not in themselves unlawful.
So most of the everyday contact between humans: a friendly handshake, paternal pat on the back, or an accidental collision in a busy shopping mall, are not examples of battery. The courts imply that we all consent to such contact in our day-to-day lives.
Is it possible for a battery to be committed when D never makes any physical contact with V? What if D sets a booby trap for V; stretches a thin line of string across a corridor and waits for V to walk into it and trip over?
In R v Martin (1881) D placed an iron bar across the doorway of a theatre and then switched off the lights. In the ensuing panic, several members of the audience ran into the iron bar and obtained injuries. The court held that D had committed a battery.
Similarly, in DPP v K (1990) a fifteen year-old schoolboy stole some sulfuric acid from his science lesson and hid it in a hand drier. He then returned to his class, intending to return to the drier at a later time and remove the acid. Before he was able to do so, an unfortunate victim used the hand drier and was sprayed by the acid. The Magistrates Court acquitted the boy and his case was appealed by the prosection. In the High Court, Parker LJ said:
If a man laid a trap for another into which he fell after an interval, the man who laid the trap would during the interval be guilty of an attempt to assault, and of an actual assault as soon as the man fell in.
Both cases make it clear that D can be found guilty of battery even though D has no physical contact with his victim.
Mens rea of assault and battery
The mens rea for assault is either:
- An intention to cause another to fear immediate unlawful personal violence, or
- Recklessness as to whether such fear is caused.
The mens rea for battery is either:
- An intention to apply unlawful physical force to another, or
- Recklessness as to whether unlawful force is applied.
- Common assault requires the threat of immediate unlawful force.
- Common battery requires the application of unlawful force.
- Both offences require either intention or recklessness.
- There is no common battery where consent is present: whether express or implied.
- Battery can be committed indirectly, especially where D sets some form of booby trap.