Non-fatal offences against the person, under English law, are generally taken to mean offences which take the form of an attack directed at another person, that do not result in the death of any person. Such offences where death occurs are considered homicide, whilst sexual offences are generally considered separately, since they differ substantially from other offences against the person in theoretical basis and composition. Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.
Offences against the person include minor forms of battery (any unlawful touching of another person); its complementary offence, assault (causing the apprehension of a battery, even when one has not yet occurred); and various more serious offences which are based on assault and battery (together called "common assault"). This includes assault occasioning actual bodily harm, where the victim suffers injuries such as bruising or skin abrasions (the converse being an injury that is "transient and trifling"); wounding (a piercing of all layers of the skin); and causing grievous bodily harm (injuries more serious than in actual bodily harm, for example broken bones). The latter two offences may be committed "with intent", meaning there is an additional mens rea component that makes the defendant more culpable for their actions. Whilst recklessness is sufficient for most offences against the person – that the defendant foresaw the risk of the proscribed injury occurring without necessarily intending it to happen – this is insufficient for crimes of intent.
General characteristics
Common to all crimes against the person is the infringement of the right to bodily integrity. It extends to the touching of clothing, for example, and where no physical harm actually results. However, if all touchings were criminalised, this would interfere with the right to liberty.Simester et al. (2010). p. 425. It is the very touching, and not the harm, that is the violation of principle. This is related to the right to privacy under Article 8 of the European Convention on Human Rights. The central statute on this topic is Offences against the Person Act 1861, which brought together a multitude of difference offences, with much overlap and inconsistent terminology. These include both the actual infliction and the threat of violence. Although criticised, the Act has not been replaced.
In the context of the law of attempts, the Crown Prosecution Service advises that "where the evidence demonstrates that the suspect intended to cause an injury that is substantially more serious than that (if any) which was in fact caused, prosecutors should consider the circumstances of the case as a whole as well as the relevant sentencing guideline to determine the appropriate charge."
Assault and battery A distinction is drawn between the offence of assault and that of battery. Assault is the apprehension of the possibility of immediate unlawful violence, and battery that of the infliction of such violence. Several proposals, including one from the Criminal Law Revision Committee in 1980 have proposed merging the offences. However, the distinction was confirmed in DPP v Little QB 645 (DC) in 1992. There, the conflation of assault and battery was criticised as duplicitous.Simester et al. (2010). p. 426.Smith (2002). p. 412. If D throws a punch at V, who dodges, this is likely to be an assault but not a battery; if V is attacked from behind, this may constitute a battery without an assault.Simester et al. (2010). pp. 426–427.Smith (2002). p. 413. Actions which constitute ordinary daily life are not considered assault or battery, for example, jostling on a crowded train.Simester et al. (2010). p. 428. The term "common assault" is used to refer to either a technical assault or a battery.
Assault
Assault is a summary offence in England and Wales, with the case heard only at a magistrates' court.Smith (2002). p. 415. Although R v Little considered assault a statutory offence, none of the statutes referred to contain any definition of assault. The actus reus, endorsed in R v Ireland, AC 147 is any act by D that causes V to apprehend immediate and unlawful personal violence.Simester et al. (2010). pp. 427–428. The term "force" rather than "violence" is used by the Crown Prosecution Service (CPS). As a definition, this has proven stable, but its interpretation has varied. The force must be unlawful – outside the realm of defensive or preventative force, for example. Consent of the victim may be enough to prevent the commission of a crime. There is to debate as to whether lack of consent is an element of the actus reus, making it inherent to the commission of a crime, or whether consent is a defence. Andrew Simester and Bob Sullivan argue that the former is more correct, since lack on consent is vital to the crime; since the act may not constitute a harm even if enacted. The disregard for the victim's autonomy and privacy is the actionable part of the offence. The victim need not be frightened by the apprehension of violence, merely not want the person concerned to do it.Simester et al. (2010). p. 429.
Assault requires a positive act, not an omission. Mere lawful presence in a location is not enough to satisfy the conduct requirement; illegal trespass, however, is sufficient. John Cyril Smith has suggested that wilfully refusing to retract an inadvertent act that causes the victim to apprehend violence may constitute an assault by omission. It is arguable that there was once a rule that "mere words" could not constitute an assault, but the case of R v Ireland confirmed that even silent phone calls would be grounds for the charge of assault.Simester et al. (2010). pp. 429–430.Elliott, Quinn (2006). p. 139. R. v Constanza added threatening letters to this category.Simester et al. (2010). p. 430.
Although assault involves a threat of an immediate battery, the perpetrator need not actually intend to carry out that battery. It is enough that he, intentionally or recklessly, caused the victim to apprehend such an occurrence. The term "immediate" has also been used in different ways. Following Ireland, it seems likely that even where the victim knew the defendant was some distance away, this may be sufficient.Elliott, Quinn (2006). p. 141. As Lord Steyn said there, "what, if not the possibility of imminent personal violence, was the victim terrified about?".Simester et al. (2010). pp. 430–431. This would widen the crime of assault considerably. It is perfectly conceivable that the victim was fearful, but did not believe an attack was imminent.Simester et al. (2010). p. 431. That she actually apprehended "immediate violence", rather than merely "immediately apprehended", is doubtful.Smith (2002). p. 414. In Constanza, it was sufficient for the prosecution to show that the victim feared an attack in the future, which may have been imminent. It also suggested that the anticipated harm could be psychological rather than physical.Elliott, Quinn (2006). p. 142.
Blake v Barnard(1840) 9 C & P 626; 173 ER 985 established a rule that conditional threats could not amount to an assault. However, the court's reliance on Tuberville v Savage(1669) 1 Mod Rep 3; 86 ER 684 was tenuous at best. Such threats would normally be considered assault.Simester et al. (2010). pp. 431–432.
The mens rea requirement is that the defendant must have intend to, or recklessly, cause the victim to fear the possibility of immediate unlawful violence.Simester et al. (2010). p. 432. There is no authority that suggests that "intend" or "recklessly" ought to mean something from their normal meanings. Cunningham recklessness – that the defendant himself foresaw the risk of harm – is applied. Assault is a crime of "basic intent" for the purposes of the Majewski test concerning voluntary intoxication.
Battery The defendant commits a battery if they intentionally or recklessly apply unlawful force to another, without their consent. It is subject to the same "everyday life" exception common to assault.Smith (2002). p. 416. Cases have included kissing,Dungey (1864) 4 F&F 99, 102; 176 ER 487 spittingSmith (1866) F&F 1066; 176 ER 910 and cutting someone's hair without their consent.Smith EWHC 94 (admin)Simester et al. (2010). pp. 432–433. This also includes contact with the victim's clothing,Simester et al. (2010). p. 433. a rule dating back to 1845 in R v Day. It is not necessary that the victim feels the touching.
The required causation may be quite oblique. As well as weaponry held in the hand, weaponry thrown is included, as is causing people to touch each other by creating a sense of panic.Martin (1881) 8 QBD 54 (CCR) The general law on liability for omissions also applies to batteries, for example those of the continuing act (as in Fagan v MPC) and of a duty of care. However, in R v Ireland the court ruled out psychological injury by means of a telephone as a form of battery, although it was not an important point in the case as other charges were brought.Smith (2002). p. 417. Poisoning is not a battery where there is no accompanying violence.
The case of R v Brown 1 AC 212 established a further requirement: hostility. This is not easily called an actus reus nor mens rea requirement. It was not clear what role it played in that case, but could apply to other cases as a way of clarifying the "everyday behaviour" guidance.Simester et al. (2010). p. 434. It has been strongly criticised by Lord Goff and other judicial and academic writers. It could apply to future cases where the bodily harm was unintended or unforeseen.Simester et al. (2010). p. 435.
The mens rea requirement for battery is similar to assault. It is the intention to apply unlawful force to another, or be reckless as to whether such force is applied.Smith (2002). p. 418. It employs Cunningham recklessness – that the defendant must have foreseen the risk of the infliction of unlawful force upon V.Smith (2002). pp. 418–419. In theory, at least, combining the mens rea of battery with the actus reus of assault, or vice versa, is not a crime.Smith (2002). p. 419. The Majewski test is applied to cases of voluntary intoxication, as battery is also a crime of "basic intent" in this scenario.
Assault occasioning actual bodily harm Assault occasioning actual bodily harm carries a maximum sentence of 5 years under section 47 of the Offences against the Person Act 1861. It is triable either way.Smith (2002). p. 436. Both assault (fear of violence) and battery (infliction of violence) are included,Simester et al. (2010). p. 436. although it is possible to consider section 47 as creating two offences – one involving an assault, and one a battery. "Occasioning" is generally taken to mean "causing" although John Gardner has argued that it is wider than that. In discussing causation, 'frightened' people are not expected to act entirely rationally; instead, a relevant test is that of R v Roberts.56 Cr App R 95 (CA) There, any conduct of the victim short of "daft" could be considered caused by the defendant's actions. Only the seriousness of the injury separates an assault from an assault occasioning actual bodily harm.
The concept of "actual bodily harm" is wide. Almost all injuries are included – for example, bruising or skin abrasions. Injuries are not included if they are "transient or trifling",Donovan 2 KB 498 CCA but this did not cover even momentary unconsciousness.T v DPP EWHC 266 (admin) The wide range of injuries give prosecutors considerable discretion about which charge to bring against a defendant. Psychological injury is included,Smith (2002). p. 437. so long as it forms a recognised medical condition.Simester et al. (2010). pp. 436–437. Mere fright or anxiety is insufficient for actual bodily harm. It is limited only by the need for an actual assault or battery to have taken place.