Briefly outline the law relating to assault

The law relating to non-fatal offences against the person is to be found in the Offences against the Person Act 1861.

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The law relating to non-fatal offences against the person is to be found in the Offences against the Person Act 1861.

An assault (sometimes referred to as common assault) is defined as intentionally or recklessly causing the victim to apprehend immediate and unlawful violence.  The actus reus of assault is the causing of the victim to apprehend immediate and unlawful violence Ireland 1998.  The mens rea of assault is to cause such fear or apprehension either intentionally or recklessly.  

There were two forms of recklessness up until the House of Lords decision in the case of G and Another (2003) i.e. Cunningham recklessness and Caldwell recklessness.  Cunningham recklessness is the subjective form, and Caldwell recklessness is the objective form.  It is the Cunningham style recklessness that is required for the purposes of proving the offence.

There is no need for the use of force or contact and examples might include such conduct as shaking a fist or brandishing a knife or other weapon.  In the past there have been doubts whether words alone would be sufficient.  However in Constanza 1997 the Court of Appeal clearly held that an assault could be committed by the use of words alone.  The case of Ireland 1998 is also helpful. This case involved the terrorising of women by silent phone calls.  The House of Lords decided that this would also be enough to amount to an assault in certain circumstances.

As regards the immediacy of the threat, the courts have taken a broad interpretation of the word ‘immediate’ in order to be fair to the victim.  This is illustrated in the case of Smith v Chief Superintendent of Woking Police Station (1983).  This case involved an individual who was discovered standing next to a window outside the victim’s apartment.  Although there was no obvious means of entry, this apparent threat was taken to be sufficient for the purpose of establishing an offence, as it produced fear and anxiety in the mind of the victim.

We sometimes think of an assault as amounting to the use of force (a battery) but a battery is quite specific and different. A battery is committed when a person intentionally and recklessly applies unlawful force to another.  Battery is a summary offence, under section 39 of the Criminal Justice Act 1988, the punishment for which is a fine and/or a prison sentence for up to six months.

If we were to compare the law of assault with the law of battery we would note that the actus reus of battery can be defined as the application of unlawful force by one person on another. The slightest touch will be sufficient and it includes any unlawful physical contact, proof of pain or harm does not have to be shown. The least touching of another is sufficient Cole v Turner 1704 and that every persons' body is inviolate according to LJ Goff in Collins v Willcox 1984.

With battery, the force can be direct, that is to say from one person to another for instance if one person punches another person or it can be indirect, as was the case in Haystead v Chief constable of Derbyshire (2000). In this case the defendant hit a woman who was holding her baby, the defendant punched the woman twice in the face and as a direct result of the punches the child fell from her arms hitting his head on the floor. The defendant was aware that she was holding the child and he would have foreseen the risk of the child being injured because of the force he used on the woman. He was convicted of the offence of battery against the child. He appealed on the grounds that 'to be guilty of battery it was necessary to establish that he had used force directly to the person of the child and that the evidence indicated that no force was applied directly to the child..." His argument was rejected and the defendant's conviction was held. Battery did not require the direct infliction of violence and his action had been no different than if he had used a weapon which had caused the child to fall.

Doubts have been expressed as to whether assault and battery remained common law offences despite the fact that they were classified as indictable offences under Section 47 OAP 1861Section 39 of the Criminal Justice Act 1888 stipulates that assault and battery are classified as summary offences.  The Divisional Court in DPP v Taylor and DPP v Little 1992 has stated that these offences are to be treated as statutory offences even though the original provision in Section 47 has now been repealed.  

The problems with language with this piece of legislation are well documented and the Law Commission has reviewed this area of the law.  As long ago as 1993 (report Legislating the Criminal Code Offences Against the Person and General Principles in November 1993) the Commission reported in detail and put forward draft legislation with the intention of modernising the law and incorporating practical suggestions for improvement.  The Law Commission saved its most severe criticisms for the Offences Against the Person Act 1861 in its report Legislating the Criminal Code Offences Against the Person and General Principles in November 1993.

The Law Commission put forward proposals which included:

  • the replacement of the 1861 Act by more comprehensible language;

  • the reforms should put the law on the footing of statute law thus avoiding the inconsistency and complexity of the case law (common law) not to mention the time taken at trial to make sure no mistakes were made; the Law Commission put as their main argument for this was that it was wholly unsatisfactory that it was felt necessary for the terms of the Act to be translated, or actually replaced by more comprehensible language; this is important as offences of violence are probably one of the most common offences before our criminal courts;

  • that it cannot be right that parts of a statute are so misleading that the sections cannot be safely be mentioned to the jury;

  • that the offences of assault and battery, be replaced by a 'assault' (one new offence); We have already noted that confusion can arise as to whether the offence should properly be considered to be an assault or a battery and we have noted the difference. The Law Commission propose to deal with this issue with a new summary offence of aggravated assault which accurately labels the perpetrator's actions in causing injury so that the expensive option of Crown Court trial for S47 offences (actual bodily harm) can be avoided and at the same time hopefully address any future problems with undercharging.

Section 47 of the OAPA provides for an offence of actual bodily harm which is a form of aggravated assault and whilst it obviously a separate offence there is a close relationship between ABH and assault. This is because for a prosecution of a S47 offence an assault or battery must be established first (Constanza1997). In addition assault as we have noted it is not necessary for injury to be established for the successful prosecution of an assault or battery but for a S47 offence there must be an injury (the meaning given to 'harm' and this needs to be more than trivial and 'bodily harm' includes psychiatric but not emotional responses like fear,distress and panic (Chan-Fook 1994).

Victims and members of the public need to feel that the law works for them and they are confident about the protection afforded. The Law Commission propose to deal with this issue with a new summary offence of aggravated assault which accurately labels the perpetrator's actions in causing injury and at the same time avoiding the expensive option of a Crown Court trial can be avoided by making aggravated assault a summary offence.

At times victims may feel that instead of concentrating upon the harm and trauma that these types of offences can cause the provisions encourage the use of court time focusing upon the state of mind of the accused and reasons why he or she should not be convicted.

These reforms remain to be implemented and are long overdue and are likely to be supported and welcomed by the various authorities involved – from law enforcement to the judiciary.


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