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Criminal | Offences Against The Person

Non-Fatal Offences: Assault Liability

Study Note | A Level

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The word assault has two meanings, it is a general term for a physical attack on another person and a specific offence. Common assault is the lowest level of offence against the person. It is not defined in any Act of Parliament but has evolved through case law, hence the name common assault. There are two types of common assault: assault and battery.

Criminal Justice Act 1988

S39 does not define common assault, it merely states the maximum term of imprisonment (6 months) and establishes that it is summary offence, triable by a magistrate.

Little (1992)

Assault should be considered statutory offences even though S39 of Criminal Justice Act 1988 only fixes penalty and tariff.

Actus reus

The actus reus of assault occurs when the defendant causes the victim to apprehend immediate and unlawful violence.

  • Causing the victim to apprehend violence

    There is no need for any physical contact between the defendant and victim, with the emphasis being on what the victim thought was about to happen. Acts or words must cause the victim to fear that immediate force is going to be used against them.

    Logdon (1976)

    Defendant pointed a replica gun at the victim as a joke. Victim was terrified until she was told it was a replica. The court held the victim had apprehended immediate physical violence and the defendant had been reckless as to whether this would occur.

    Smith v Chief Superintendent of Woking Police Station (1983)

    Defendant entered a private garden and looked through the window of the victim. She was terrified and thought he was about to enter the room. This was enough for assault, despite the fact there was a locked window between the defendant and victim.

    Words alone or even silence can constitute assault. This is consistent with the law that was developed to deal with stalkers prior to the Protection from Harrassment Act 1997.

    Ireland (1997)

    Defendant terrorised the victim, who suffered psychiatric injury, with silent phone calls.

    Constanza (1997)

    Defendant stalked the victim, sending her over 800 letters in a period of four months. It was held the content of the letters were assaults as the victim read them as threats.

    It follows that if words alone can constitute an assault, content of emails or text messages or other written communication may also be sufficient.

    Tuberville v Savage (1669)

    Tuberville was insulted by comments made by Savage and placed his hand on his sword, stating If it were not assize-time, I would not take such language from you... Savage tried to sue Tuberville for assault.

    It was held in this instance, that words can make clear an assault is not going to take place. Tuberville had made clear he would not take action as the criminal judges were in town.

  • Immediate violence

    The courts have adopted a fairly liberal approach to the meaning of immediate in order to give justice to the victim.

    Smith v Chief Superintendent of Woking Police Station (1983)

    ... 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..

    Ireland (1997)

    Immediacy was found in the phone calls and verbal contact made by the defendant. The victim may fear the purpose of the call was to establish whether she was at home.

  • Unlawful violence

    The threatened violence must be unlawful. Therefore, a policeman may threaten to handcuff or restrain if someone resists arrest as this is not an unlawful action.

Mens rea

The mens rea of assault is satisfied when the defendant intends to cause the victim to apprehend immediate physical violence or does this recklessly.

Savage (1991)

Stated mens rea is ... intention to cause the victim to apprehend unlawful and immediate violence or reckless whether such an apprehension be caused.. .

Mens rea for assault falls into two categories. Either direct or oblique intention as to causing immediate, unlawful fear in the victim that he might suffer some harm. Or subjective recklessness as to causing immediate, unlawful fear in the victim that he might suffer some harm.

Cunningham (1957)

Defendant removed gas meter from an empty house to steal money from it. This caused a gas leak, which seeped next door. The victim, a woman who lived next door, became ill and her life was endangered by the gas. The court found that to have the necessary mens rea the defendant must either intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk.

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