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1 General principles
- 1.1 Actus reus
- 1.2 Mens rea
2 Whether it is a statutory offence
3 Mode of trial and sentence
4 Racially or religiously aggravated offence
5 Status of offence
6 See also
7 References
8 External links

Common assault was an offence under the common law of England, and seems to now be a statutory offence. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery. In England and Wales, the penalty and mode of trial for this offence is now provided section 39 of the Criminal Justice Act 1988, and it has been held that the offence should be alleged as contrary to the statute because of this. It was also held that there were two distinct offences, so that a charge that the accussed 'assault and battered' another person would be bad for duplicity (the rule against charging more than one offence in a single count).

General principles

Common assault is not defined by section 39 of the Criminal Justice Act 1988, as this remains under the common law in the case of Venna.

Actus reus

Both in the common law and under statute, the actus reus of a common assault is committed when one person causes another to apprehend or fear that force is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable even though the victim may have a phobia although, if the defendant is aware of the psychological difficulty, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action although this might form a “menace” within the meaning of section 22 of the Theft Act 1968 for the purposes of blackmail. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that he would beat the living daylights out of you but for the presence of a police officer watching them both, the victim is supposed to understand that there is no immediate danger. But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a mobile phone is used to transmit the threat (whether orally or by SMS) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.

In Fagan v. Metropolitan Police Commissioner [1968] 1 QB 439 a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman’s foot and, when asked to remove the car, said "Fuck you, you can wait" and turned off the ignition. Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault. Albeit accidentally, the driver had caused the car to rest on the foot. This actus reus was a continuing act and the mens rea was formed during the relevant time (see concurrence). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete.

Mens rea

The mens rea is that this fear must have been caused either intentionally or recklessly. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly.

Whether it is a statutory offence

In DPP v. Taylor, DPP v. Little [1992] 1 QB 645, 95 Cr.App.R. 28, it was held that common assault is a statutory offence, contrary to the Criminal Justice Act 1988. This decision was critised[1][2][3] and in Haystead v. DPP 164 JP 396, DC,[1] the Divisional court expressed the obiter opinion that common assault remains a common law offence.

Mode of trial and sentence

This is usually a summary offence.

In England and Wales it is a summary offence. However, where section 40 of the Criminal Justice Act 1988 applies, it can be an additional charge on an indictment.

However it is tried, it is punishable with imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

See Crown Prosecution Service Sentencing Manual for case law on sentencing.

Racially or religiously aggravated offence

In England and Wales, section 29(1)(c) of the Crime and Disorder Act 1998 (c.37) creates the distinct offence of racially or religiously aggravated common assault.

Status of offence

This is the least serious assault and, under section 11 of the Domestic Violence, Crime and Victims Act 2004, a common assault can be an alternative verdict to more serious offences of assault. In real terms, the degree of fear or the level of injury required for a conviction can be slight. Thus, even the most trivial of injuries can be a battery, whether as a scratch or bruise, so long as the contact can be proved.

References

^ Archbold Criminal Pleading, Evidence and Practice, 1993 supplements and 1994 and 1996 editions
^ Smith and Hogan, Criminal Law, 9th Ed, p.402
^ J.C. Smith [1991] Crim LR 900