Common Assault and Battery — SQE1 FLK2 Criminal Liability

An argument in a bar. You shove the other man hard in the chest, meaning only to push him away from you. That is all you meant to do. He does not see it coming, stumbles backwards, falls heavily and breaks his wrist. You gave no thought at all to whether he might be hurt. Does that save you? No.

The offence you have just committed carries five years. This is Common Assault and Battery, the foundation of every non-fatal offence against the person, and the place where the mental element is narrower than almost anyone expects. Keep that shove in mind. We are coming back for it.

Here is the route. Assault first: apprehension of force, with no contact at all. Then immediacy, and the conditional threat. Then battery, and how little force it takes. Then the mental element for both. Then section 47, where an assault or a battery that causes harm becomes something much more serious. And finally consent, which is where most of the argument happens.

Start with the hierarchy, because it organises everything. Common assault and battery sit at the bottom. Above them, actual bodily harm under s.47 of the Offences Against the Person Act 1861, five years. Above that, wounding or grievous bodily harm under s.20, also five years. And at the top, s.18, wounding or grievous bodily harm with intent, which carries life.

Common assault first. It is intentionally or recklessly causing another person to apprehend the immediate infliction of unlawful force. Read that again and notice what is missing. There is no contact. Nothing touches anybody. Swing a fist at someone and they flinch, and that is an assault even though you miss.

One word does a lot of work there. Apprehend does not mean terrified, or fleeing in panic. It means the victim was aware of the threat and believed it. Even a momentary awareness that force might be about to land is enough. They do not have to show they were frightened, only that they perceived the threat as real.

So how far does that stretch? A defendant made a large number of silent telephone calls to women over a period of time. The victims became genuinely afraid. The House of Lords held that words alone could constitute an assault, and that the old rule to the contrary was outdated and wrong. R v Ireland, from 1998.

The letters case pushes it further. A man pursued a woman with unwanted attention, sent her threatening letters and drove past her shouting abuse, and she developed a severe depressive illness. The court held that apprehension of immediate violence can arise from words or gestures alone, and that immediate means sufficiently immediate to the victim's state of mind. He was convicted of assault, and of causing actual bodily harm for the psychiatric injury.

And a wall is not a defence. A man stood in a private garden at about 11pm, looking through the window at a woman in her nightclothes. She was terrified. He argued she could not have apprehended immediate violence, because he was outside and she was inside. The Divisional Court rejected that. What mattered was that she feared what he might do next. A physical barrier does not defeat immediacy.

But words cut both ways. They can create an assault, and they can destroy one. Swing a fist and immediately shout that you are only joking, and the victim may no longer apprehend immediate force at all.

Which is the oldest case in this topic and still the best. The defendant put his hand on his sword and said: if it were not assize-time, I would not take such language from you. Assize-time meant the judges were in town and the law was strictly enforced. Assault, or no assault? No assault. The condition told the victim he was not about to be struck. Tuberville v Savage, from 1669.

Do not over-read that. A conditional threat can still be an assault. If the condition is trivial or obviously not genuine. If threatening gestures make the victim fear force whatever the words say. If the condition is something the victim cannot realistically comply with. Or if the defendant is already advancing anyway.

Battery now, and it is the other half. Battery is the intentional or reckless application of unlawful force to another person. Here contact is the whole point. And the threshold is extraordinarily low. Any touching of another person, however slight, may amount to a battery. It need not cause pain, injury, or even discomfort, and it need not be aggressive. Collins v Wilcock, from 1984.

Same case draws the limit. A police officer took hold of a woman's arm to stop her walking away during questioning, without arresting her. That was a battery. But the court was equally clear that the ordinary jostlings of everyday life are not. Bumping into someone on a busy pavement, brushing past in a corridor, a handshake. Society implicitly consents to those.

The question is whether the touching goes beyond what is acceptable in ordinary conduct. Note what hostility means here, because it trips people up. It does not mean ill-will. It simply means the touching was not consented to in the circumstances.

Two extensions worth having. First, the victim need not be aware of the touching. Assault requires awareness, because the victim must apprehend the threat. Battery does not, because the actus reus is complete on the application of force. So a sleeping, unconscious or very drunk victim can be battered.

Second, the force can be indirect. It does not have to travel from your body to theirs. Flick a cup of water into a colleague's face and the water reaches him just as a fist would. Punch a woman who is holding her child, so that she drops the child, and you have committed a battery on the child too.

The mental element is the same for both, and it is short. Intention to cause the apprehension, for assault. Intention to apply the force, for battery. Or recklessness as to either: the defendant foresaw the risk and it was unreasonable to take it. Subjective recklessness, what this defendant actually foresaw, not what a reasonable person would have.

And here is the sentence to memorise. The mens rea is about the act, not the consequence. You need never have intended or foreseen any particular level of harm. That is easy to accept while we are talking about pushes and flicked water. It becomes much harder in a moment.

Section 47. It is an offence to assault or beat any person, whereby actual bodily harm shall be occasioned. Three elements. One: the defendant committed an assault or a battery. Two: it caused actual bodily harm. Three: the mens rea for that assault or battery. And nothing else. Maximum, five years.

So what counts as actual bodily harm? Any hurt or injury that interferes with the health or comfort of the victim. It need not be permanent or serious, but it must be more than merely trifling or transient. Cuts, bruises, swelling and scratches have all qualified. So has cutting off a woman's hair without her consent.

Psychiatric harm counts too, but with a line drawn through it. Recognised psychiatric illness is capable of being actual bodily harm. Ordinary emotions are not. Fear, distress and panic, on their own, are not enough, and you would usually need medical evidence of a diagnosable condition. R v Chan-Fook, from 1994, is where that line sits.

Now back to our shove. The House of Lords has held that the mens rea for s.47 is simply the mens rea for the assault or battery. The prosecution need not prove the defendant intended or foresaw any bodily harm at all. She intended to apply unlawful force when she shoved him. The broken wrist was occasioned by that battery. Section 47 is made out.

That is constructive liability, and it is why s.47 is sometimes called the catch-all. You are liable for the consequence even though you never saw it coming. A push that goes wrong carries a maximum of five years. If you want to defeat it, you attack the underlying assault or battery, not the harm.

Which brings us to consent. If the victim consents, the force is not unlawful and there is no offence. But consent is not a blanket defence. Two questions run alongside each other. Was the consent real? And is this an activity society accepts people can consent to at all?

Where it works: contact sports, where players consent to the normal risks of the game. Rough horseplay between willing participants, and a genuine belief in consent will do there even if it is unreasonable. Medical treatment with informed consent, where the patient understands in broad terms the nature of the procedure. Tattooing and body piercing, properly carried out.

Where it stops is the leading case. A group of men engaged in consensual sadomasochistic activities causing actual bodily harm and worse. The House of Lords held that consent was not a defence to the intentional infliction of actual bodily harm. Public policy limits it to narrowly defined categories. R v Brown, from 1993, remains good law and it remains the starting point.

The exception people reach for is narrower than they think. A husband branded his initials onto his wife's buttocks with a hot knife, at her request. The Court of Appeal quashed the conviction, treating the marking as not relevantly different from tattooing. R v Wilson, from 1996. But it turns on the analogy with personal adornment, not on any principle that consensual activity between spouses is lawful.

And there is now a statute over the top of it. Section 71 of the Domestic Abuse Act 2021 provides that consent is no defence where serious harm is inflicted for the purpose of obtaining sexual gratification. Serious harm there is defined to include actual bodily harm under s.47. So the Wilson analogy survives only where the harm was not inflicted for that purpose.

Deception can destroy consent too, but only sometimes. A suspended dentist who kept treating patients did not vitiate their consent: they consented to the nature and quality of the act, and the deception was about her qualification. But a man who told women he was a physiotherapy researcher, when he had no training at all, did vitiate it. They consented to the nature of the act but not its quality.

One last piece, and it is a quick mark. Common assault and battery are creatures of the common law given a statutory footing by s.39 of the Criminal Justice Act 1988. Maximum, 6 months. And they are summary only, so they are always dealt with in the Magistrates' Court. If the assault caused actual bodily harm, you charge s.47 instead.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn where each line falls. The names in this episode are memory pegs, nothing more.

If you keep only three. Collins v Wilcock, where any touching however slight can be a battery, but the ordinary jostlings of everyday life are not. R v Ireland, where silent phone calls made an assault and no contact was needed at all. And R v Brown, where consent runs out at actual bodily harm unless you are inside one of the narrow categories.

Four traps the examiners set. One: apprehension is not fear. A victim who is perfectly calm, but who believes force is about to land, has been assaulted. The paper likes a witness who says she was not frightened, only surprised. She perceived the threat as real. That is enough.

Two: words work in both directions. They can create an assault and they can take one away. Look hard at anything the defendant said at the moment of the act. A condition attached to a threat may leave the victim in no apprehension of immediate force.

Three: psychiatric harm has a threshold. A recognised psychiatric condition can be actual bodily harm. Fear, distress and panic on their own cannot, and you would normally need medical evidence of something diagnosable. A very frightened victim with no diagnosis gets you common assault, not s.47.

Four: everyday touching is not battery. The handshake, the brush past in a corridor, the tap on the shoulder. Society implicitly consents to those. And hostility, in this context, does not mean ill-will. It means only that the touching went beyond what was acceptable in the circumstances.

Quick check, and you have met her already. A woman shoves another customer hard in the chest during an argument in a bar, intending only to push him away. He had not seen the shove coming. He stumbles backwards, falls and lands heavily, breaking his wrist. She intended the push but gave no thought at all to whether he might be hurt. A broken wrist is actual bodily harm.

Of what offence, if any, is she guilty in respect of the broken wrist? Three candidate answers. One: no offence, because she neither intended nor foresaw any injury. Two: s.47, because the mens rea is only that of the battery she intended. Three: battery only, because s.47 requires foresight of some bodily harm. Pause here if you want a moment.

The answer is two. Section 47 is a constructive offence. The House of Lords has held that the mens rea for assault occasioning actual bodily harm is simply the mens rea for the assault or battery. The prosecution need not prove the defendant intended or foresaw any bodily harm at all. She intended to apply unlawful force, and the broken wrist was occasioned by that battery.

Why the others fail. One demands foresight of injury, which is exactly what the House of Lords decided is unnecessary. Three fails for the same reason. Liability under s.47 is built on the battery, and the harm aggravates it rather than being a further matter to foresee.

Five things to take away. One: assault is causing the apprehension of immediate unlawful force, with no contact at all, and words alone can do it. Two: battery is applying unlawful force, any touching however slight, and the victim need not be aware of it.

Three: the mens rea for both is intention or subjective recklessness, and it attaches to the act, never to the consequence. Four: s.47 builds on that. Assault or battery, plus actual bodily harm, plus the mens rea for the assault or battery and nothing more.

Five: consent is a defence but it stops at actual bodily harm, except in the recognised categories. And s.71 of the Domestic Abuse Act 2021 closes it further where harm is inflicted for sexual gratification. Next time, Section 20 and Section 18 of the Offences Against the Person Act 1861.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.