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Assault - general
Although `assault' is, strictly speaking, an offence at common law, in reality most cases will be of assault and battery, assault occasioning actual bodily harm, etc., as discussed below. All these offences have assault as the basis; this section discusses the common features of assault.In common law, assault is committed when the victim is caused to suffer an immediate and unlawful apprehension of danger, by an intentional or reckless act of the perpetrator. No physical contact need take place. Because of the close connection, the term `assault' is often used to imply a `battery' as well. Technically, assault can be verbal rather than physical, but there are few cases of this on record. Clearly, intentional assault can be an offence, but until recently it was unclear whether recklessness was sufficient mens rea for assault (or battery). RVVenna1975 confirms that it is. The existence of recklessness is, of course, not always clear. While the case of RVCaldwell1982 extends the earlier definition in RVCunningham1957 to allow for recklessness where the defendant overlooked an `obvious' risk, the cases of RVSpratt1990 and RVSavage,RVParmenter1992 show that assault requires some foresight of harm. That is, it is a defence against an assault charge to claim that the prospect of risk never entered the defendant's mind.
Technically one cannot commit assault by omission, and courts have sometimes stretched the interpretation of the actus reus of assault to allow prosecution in clear cases of wrongdoing (see: RVFagan1969). Moreover, although omission cannot be grounds for assault, it is said that silence can, e.g., intimidating phone calls (see: RVIrelandAndBurstow1998). However, it could be thought that it is the acts of telephoning and then remaining silent collectively constitute the actus reus, rather than it being silence itself.
The `immediacy' of the threat is often questioned; in some cases it has been interpreted quite liberally (see: SmithVChiefSuperintendantOfWokingPoliceStation1983). However, it seems clear that threat of some future action is not an assault (``one of these days I'll...'').
There are conflicting reports of whether a conditional threat can be construed as an assault (``if you don't xxx I'll yyy...'''). The differences may result from the different demeanour and gestures of the defendants.
The defendant's act must be the cause of the harm in the victim, but it need not be the only cause; the act need only be contributory. Moreover, the causation need not be direct. In RVHalliday1886 the accused threatened his daughter, so that she let the accused's wife fall from a window.
It is significant that the offence requires `apprehension' or `fear' of danger; this means that (a) the victim must be aware of the threat (e.g., be awake), and (b) it is irrelevant whether the perpetrator intends to carry out the threat or even has the wherewithal to. For example, a threat with an unloaded gun constitutes assault.
The meaning of `unlawful' will be discussed below.
Common-law assault and/or battery
A `battery' is the intentional or reckless application of unlawful force, however slight, to the body of someone who does not consent to it. The term `physical assault' is often used as an alternative to `battery'. The contact need not be body-to-body, not direct. Battery can be committed using a weapon, for example, or by compelling another person to do the damage, or using a trap or poison.A battery need not be aggressive or hostile, except insofar as it is not consented to. This means that in cases where the victim is legally incapable of consent (e.g., is a minor), a battery need not be hostile.
The meaning of `unlawful' will be discussed below.
Assault occasioning actual bodily harm (OAPA 1861 s.47)
This offence requires proof of assault and/or battery, so the elements of common-law assault and/or battery must be present to prove this offense. In addition, there must be clear causation of the harm by the assault. `Actual bodily harm' is:- any non-trivial physical harm, e.g., bruising, minor fracture, nose-bleed, or
- any psychiatric harm more significant than fear or panic.
The mens rea for this offence is the same as that for common-law assault; there need not be a separate mens rea for the ABH (as decided in RVSavage,RVParmenter1992. This means that in general a court can enter a conviction under s.47 even to a charge under s.20 (below), even if s.20 cannot be proved.
This offence carries a maximum penalty of five years' imprisonment, as does s.20 (below), but s.20 offences are usually seen as the more serious.
Maliciously inflicting grevious bodily harm; malicious wounding (OAPA 1861 s.20)
This offence does not require proof of assault or battery. For example, long-term harrassment (e.g., `stalking') could form part of this offence (`stalking' itself probably does not constitute an assault, because the immediacy of the threat is not sufficient).
`Grevious bodily harm' is `serious bodily harm', that is, more harmful than `actual bodily harm'. GBH has been taken to include broken bones, internal injuries and psychiatric damage.
A `wound' is any injury that penetrates the skin; technically a pin-prick is sufficient. Of course, many charges will be of wounding and GBH, but either will suffice alone.
This offence differs from `wounding with intent' (s.18) largely because it does not require that the perpetrator intend the full consequences of the harm. The perpetrator must intend some harm, but need not intend GBH or wounding.
This offence carries a maximum penalty of five years' imprisonment, as does s.47 (above), but s.20 offences are usually seen as the more serious.
Wounding with intent, etc. (OAPA 1861 s.18)
s.18 offenses require that the wounding or GBH occur (as in s.20) and that the perpetrator- intends to would or cause GBH, or
- intends to resist arrest.
As for s.20, assault is not necessary. Unlike s.18, these offences require specific intent: to wound or cause GBH, or to resist arrest. s.20 only requires intend to do `some' harm.
s.20 offences are the most serious covered by the OAPA (1861), and are subject to a maximum penalty of life imprisonment.
At present, a defendant charged under s.18 can be convicted of a s.20 or s.47 offence if the specific intent is not strong enough for s.18.
Maliciously administering poison (OAPA 1861 s.23 and 24)
Administration of poison may be an offence under s.20 (if the consequences amount to GBH) or s.47 if they amount to ABH; however the 1861 act creates two specific offences of maliciously administering poision. Maximum penalty is 10 years' imprisonment.
In s.23, the more serious offence, the administration must lead to grevious bodily harm. There need not be any specific intention to cause this harm but, like s.20, there must be an intention to some harm. In s.24, there must be an intention to cause harm or `annoyance', although the act need not necessarily succeed. Maximum penalty is 5 years' imprisonment.
`Unlawful' element in offences against the person
In all offences against the person it is stated or implied that the action carried out must be `unlawful'. In what circumstances is it lawful to inflict harm on a person?
- In self-defence.
- In reasonable chastisement of children. Many people would consider this morally questionnable, but reasonable force is legally acceptable in disciplining one's children. Of couse, a person using such force may be called upon to demonstrate that the force used was appropriate to the situation.
- Where the victim consents, except where consent is not relevant (discussed below).
`Causation' element in offences against the person
There has been, and still is, some difficulty about the nature of causation in s.18 and s.20 of the OAPA (1861). s.18 uses the word `cause' but s.20 uses `inflict'. The argument centres on whether `cause' and `inflict' are difference. Since neither section now requires a common law assault to be shown, the distinction is not that important, and it is likely that the usual rules of legal causation need to be satisfied (see: CausationInCriminalLiability).
`Consent' as defence in offences against the person
At present, consent to an offense against the person is a defence to the charge, not a removal of the actus reus. If it can be shown that the victim consented to the act, this is a full defence and the accused will be acquited, except in cases where it is legally impossible to give consent.
In general, consent is allowed -- at least to adults -- in all cases of common law assault and battery. Consent is not a defence, however, in any of the following:
- murder or manslaughter, except SuicidePact;
- assault occasioning ABH or a more serious OAP, except in legally-recognized circumstances, which include: contact sports, dangerous exhibitions, ritual disfigurement (including tatooing, body piercing, male circumcision (not FemaleCircumcision), `rough horseplay', and surgery;
- people under 16 cannot, in general, consent to any form of assault, including sexual assaults, from an adult. There are some exceptions in the case of medical treatment, and in general children are assumed to `consent' to reasonable physical chastisement from their guardians (at least for the time being);
- where the consent was achieved by threats or coercion, or a fundamental misunderstanding of the act consented to;
- where the consent was achieved by impersonation of another person (specifically in rape).
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