Assault Battery and ABH
Non-fatal offences against the person encompass a range of offences
where a person is caused some harm but the harm does not result in
death. There is a gradient scale of offences based on the level of harm
caused to the victim and the level of intent demonstrated by the
defendant. Each of these offences has their own actus reus and mens
rea and are accompanied by charging guidelines as to the type of injuries
they encompass. All of these elements must be considered when looking
at a possible offence.
Examination Point
It sounds obvious but be really careful to read the whole question before
you start writing about non-fatal offences against the person. You must
make sure the victim is not dead. If you don’t do this, you may provide a
fantastic answer on assault only to find that it was actually a homicide
question.
2.0 Common Assault
Common Assault is a common law offence and is not set out under any
statue but charged under s.39 Criminal Justice Act 1988. In day to day
speak it is used to refer to the individual offences of both assault and
battery.
In legal terms, crimes will often involve an element of both assault and
battery and the two are charged together as a common assault. For the
purposes of exams however you will need to understand the constituent
elements of and differentiate between both assault and battery.
2.1 Assault
As eluded to above the word assault is used interchangeably to refer to
crimes of assault and battery, which are properly known as a common
assault. In the present context the word assault refers to what is properly
known as a technical assault. These are assaults where no physical
contact occurs.
2.1.2 Actus Reus
The actus reus of assault is causing a person to apprehend the immediate
application of unlawful force.
This can be broken down into two key parts:
The defendant causes victim to apprehend the use of force against
them, and;
, The victim apprehends that use of force will be immediate
(i) The defendant causes the victim to apprehend force.
The actus reus is established through the causing of the apprehension of
force and there does not need to be any application of actual force on the
victim.
It does not matter whether the actual application of force was even
possible, as long as the apprehension is caused. To illustrate this, consider
the following example. The defendant points an unloaded gun at a
stranger in a street. There is no way he could shoot them even if that was
his intention but the stranger will be unaware of this so will fear the
application of force. Now consider that the defendant and his friend are
shooting enthusiasts and are in a gun shop looking at unloaded display
models. If the defendant picked up a gun and turned and pointed it at his
friend and shouted ‘hands up or I’ll shoot’ the defendant’s friend will know
that this is an empty threat and will not be caused to apprehend a use of
force, thus no assault will occur.
R v Constanza [1997] Crim LR 576 states that words alone can cause
the victim to apprehend harm and thus constitute an assault. For
example, “I’m going to hit you” does not need to be accompanied by any
action for an assault to occur. The ruling in R v Ireland [1997] 3 WLR
534 takes this further and states that silence can amount an assault. In
this case the defendant made a series of silent phone calls to his victim
causing them to fear immediate force and leading them to suffer severe
psychological damage as a result of his on-going calls.
Just as words can cause an assault they can also prevent a potential
assault from occurring. This point is demonstrated nicely in the case
of Tuberville v Savage [1669] EWHC KB J25.
Case in focus: Tuberville v Savage [1669] EWHC KB J25
Having been infuriated by some comments directed towards him, the
defendant placed his hand on his sword as if to draw it. This would plainly
cause the victim to fear the immediate application of unlawful force and
thus constitute an assault, however the defendant accompanied his action
with the words “if it were not assize time I would not take such language.”
In modern day context, this meant that as the judges were in town he
would not commit an act of violence, thus negating the effect of this
threatening action.
Just as words can negate an assault, the context and tone of such words
can too negate an assault. In cases where menacing words were clearly
intended as a joke and were taken as such there can be no assault. This is
illustrated by the recent case of Chambers v DPP [2012] EWHC
2157 where the defendant took to Twitter to threaten to resort to
Non-fatal offences against the person encompass a range of offences
where a person is caused some harm but the harm does not result in
death. There is a gradient scale of offences based on the level of harm
caused to the victim and the level of intent demonstrated by the
defendant. Each of these offences has their own actus reus and mens
rea and are accompanied by charging guidelines as to the type of injuries
they encompass. All of these elements must be considered when looking
at a possible offence.
Examination Point
It sounds obvious but be really careful to read the whole question before
you start writing about non-fatal offences against the person. You must
make sure the victim is not dead. If you don’t do this, you may provide a
fantastic answer on assault only to find that it was actually a homicide
question.
2.0 Common Assault
Common Assault is a common law offence and is not set out under any
statue but charged under s.39 Criminal Justice Act 1988. In day to day
speak it is used to refer to the individual offences of both assault and
battery.
In legal terms, crimes will often involve an element of both assault and
battery and the two are charged together as a common assault. For the
purposes of exams however you will need to understand the constituent
elements of and differentiate between both assault and battery.
2.1 Assault
As eluded to above the word assault is used interchangeably to refer to
crimes of assault and battery, which are properly known as a common
assault. In the present context the word assault refers to what is properly
known as a technical assault. These are assaults where no physical
contact occurs.
2.1.2 Actus Reus
The actus reus of assault is causing a person to apprehend the immediate
application of unlawful force.
This can be broken down into two key parts:
The defendant causes victim to apprehend the use of force against
them, and;
, The victim apprehends that use of force will be immediate
(i) The defendant causes the victim to apprehend force.
The actus reus is established through the causing of the apprehension of
force and there does not need to be any application of actual force on the
victim.
It does not matter whether the actual application of force was even
possible, as long as the apprehension is caused. To illustrate this, consider
the following example. The defendant points an unloaded gun at a
stranger in a street. There is no way he could shoot them even if that was
his intention but the stranger will be unaware of this so will fear the
application of force. Now consider that the defendant and his friend are
shooting enthusiasts and are in a gun shop looking at unloaded display
models. If the defendant picked up a gun and turned and pointed it at his
friend and shouted ‘hands up or I’ll shoot’ the defendant’s friend will know
that this is an empty threat and will not be caused to apprehend a use of
force, thus no assault will occur.
R v Constanza [1997] Crim LR 576 states that words alone can cause
the victim to apprehend harm and thus constitute an assault. For
example, “I’m going to hit you” does not need to be accompanied by any
action for an assault to occur. The ruling in R v Ireland [1997] 3 WLR
534 takes this further and states that silence can amount an assault. In
this case the defendant made a series of silent phone calls to his victim
causing them to fear immediate force and leading them to suffer severe
psychological damage as a result of his on-going calls.
Just as words can cause an assault they can also prevent a potential
assault from occurring. This point is demonstrated nicely in the case
of Tuberville v Savage [1669] EWHC KB J25.
Case in focus: Tuberville v Savage [1669] EWHC KB J25
Having been infuriated by some comments directed towards him, the
defendant placed his hand on his sword as if to draw it. This would plainly
cause the victim to fear the immediate application of unlawful force and
thus constitute an assault, however the defendant accompanied his action
with the words “if it were not assize time I would not take such language.”
In modern day context, this meant that as the judges were in town he
would not commit an act of violence, thus negating the effect of this
threatening action.
Just as words can negate an assault, the context and tone of such words
can too negate an assault. In cases where menacing words were clearly
intended as a joke and were taken as such there can be no assault. This is
illustrated by the recent case of Chambers v DPP [2012] EWHC
2157 where the defendant took to Twitter to threaten to resort to
