Describe and illustrate the tort of assault

An assault is a tort as well as a crime. An assault may be defined as intentionally and directly causing the victim to fear an apparent and imminent battery.

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An assault is a tort as well as a crime. An assault may be defined as intentionally and directly causing the victim to fear an apparent and imminent battery. An assault (sometimes referred to as common assault) may also be defined as intentionally or recklessly causing the victim to apprehend immediate and unlawful violence.  


The wrong may give rise to both criminal or civil liability but for the purposes of this question we are primarily concerned with the matter of civil liability.


The tort has long been recognised under our common law and we are helped by a number of leading cases in our quest to describe and illustrate what amounts to an assault. The criminal law must also take note of the the law relating to non-fatal offences against the person found in the Offences Against the Person Act 1861.


As with most criminal offences it is possible to identify the necessary actus rea and mens rea of assault.


As regards the tort of assault, the courts have determined that there are a number of elements to the tort and it is worth considering these elements in turn.


Curiously, no harm or contact is required for the tort of assault to be established. 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. 


It is enough that the perpetrator commits an act intended to cause the apprehension that an immediate harmful or offensive contact (known as battery) is imminent and this causes such apprehension in the mind of the victim.


For the tort of assault to arise words are traditionally not enough without gestures or actions of some kind. In R v Meade and Belt (1823), a criminal case, it was held that

'no words or singing are equivalent to an assault'. In Constanza 1997 the Court of Appeal clearly held that an assault could be committed by the use of words alone. 


In Read v Coker (1853) it was enough for the defendant and his men to surround the claimant and to pull up their sleeves, as if to get ready for a fight, and also threaten to break the claimant's neck if he did not leave.




In criminal law the actus reus of assault is the causing of the victim to apprehend immediate and unlawful violence. In the cases of R v Burstow and R v Ireland (1997) the House of Lords, as it was then, dismissed the appeals by both appellants. The House of Lords decided that the threatening and menacing behaviour took the form of a campaign of silent telephone calls to women when they were alone in their home.


The House decided to dismiss the appeals and uphold the convictions and did not accept that the defendants' actions fell within the provisions of section 47 of the 1861 Act. In criminal law as opposed to the civil law silence is enough. Lord Steyn took the view that 'It is easy to understand the terrifying effect of a campaign of telephone calls at night by a silent caller to a woman living on her own. It would be natural for the victim to regard the calls as menacing. What may heighten her fear is that she will not know what the caller may do next'.


In Turberville v Savage (1669) it was shown that words can, on the other hand, disprove what otherwise might have amounted to an assault. In that case the defendant struck the victim causing the victim to lose an eye. The facts were that Savage had made some insulting remarks to Tuberville. Tuberville in response placed his hand on the handle of his sword saying "If it were not assize-time (meaning the court of Assize when a judge would be available to deal with the case), I would not take such language from you." Savage struck Tuberville causing him to lose an eye.


Tuberville brought an action for assault. Savage claimed that he had been provoked by Tuberville's words. The court held that the words were enough to prevent the gesture from amounting to an assault.


The case of Smith v Chief Superintendent of Woking (1983) raised the issue of immediacy or impending battery. In that case the defendant entered a private garden and was found looking into the victim's bedroom window. The court took the view that the manner of the defendant's presence was sufficient in itself to amount to an assault.


Having established what amounts to an assault in tort we need to consider the possible defences of necessity, consent and self defence.


The defence of necessity, whilst now recognised in law, is extremely restricted in its operation. The basis of the defence is that the defendant claims that he was forced to act in the way he or she did as a result of circumstances they found themselves in.


In the case of Southwark LBC v Williams (1971) the defendants, out of desperation, entered empty houses owned by the local authority. They were homeless and took the law into their own hands.


Lord Denning took a firm line on this matter saying "… if hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass … . If homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry."


The defence of consent arises where it is claimed that the actions complained of occurred with the victim's prior consent.


The defence of self defence may be appropriate. The defendant themselves may be fearful of an impending contact and in an attempt to pre-empt the attack, use gestures or other actions in self defence. These actions may be used to indicate for example that if the other party comes any closer the defendant will have no alternative but to defend themselves.



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