Discuss liability for assault
Common assault is the lowest level of offence against the person and is not defined in any Act of Parliament as it has evolved through case (common) law. Section 39 of the Criminal Justice Act 1988 does not define common assault, it merely states the maximum term of imprisonment (6 months) and establishes that it is summary offence.
Actus reus occurs when the defendant causes the victim to apprehend immediate and unlawful violence.
Causing the victim to apprehend violence
There is no need for physical contact between defendant and victim. The acts or words must cause the victim to fear that immediate force is going to be used against them.
In Logdon (1976) the defendant pointed a replica gun at the victim as a joke, the victim was terrified, it was held victim had apprehended immediate physical violence and the defendant had been reckless as to whether this would occur.
Emphasis is on what the victim thought was about to happen (Smith v Chief Superintendent of Woking Police Station (1983)).
Words alone or even silence can constitute assault. In Ireland (1997) the defendant terrorised the victim, who suffered psychiatric injury, with silent phone calls.
Written words may be enough. In Constanza (1997) the defendant stalked the victim, sending her over 800 letters in a period of 4 months and it was held the content of the letters were assaults as the victim read them as threats. Words can also make clear an assault is not imminent (Tuberville v Savage (1669)).
Courts take a fairly liberal approach to meaning of immediate , in order to give justice to the victim.
It was noted
.. when one is in a state of terror, one is very often unable to analyse precisely what one is frightened of as likely to happen next.. (Smith v Chief Superintendent of Woking Police Station (1983)).
In Ireland (1997) immediacy was found in the phone calls made by the defendant as the victim may fear the purpose of the call was to establish whether she was at home.
Threatened violence must be unlawful. A policeman may threaten to handcuff or restrain if someone resists arrest and this is not an unlawful action.
Mens rea of assault is
..intention to cause the victim to apprehend unlawful and immediate violence or reckless whether such an apprehension be caused... (Savage (1991)). Either direct or oblique intention or subjective recklessness can apply (Cunningham (1957)).
So mens rea is satisfied when the defendant intends to cause victim to apprehend immediate physical violence or does this recklessly.