Common Assault and Battery — SQE1 practice question

During an argument outside a club, a man swings his arm in a wide arc towards another man's head. He is an experienced boxer and judges the distance precisely, deliberately stopping the swing short because he wants to frighten the other man rather than hit him, and he is confident it will not connect. The other man sees the arm coming, believes he is about to be struck and jerks his head back. The swing misses by a few inches. Neither man is touched and neither is injured.

Which offence, if any, has the man committed against the other man?

Option A. Correct answer. He is guilty of common assault, because he intended the other man to apprehend immediate force.Correct
Option B. Incorrect answer. He is guilty of battery, because swinging his arm at another's head applies unlawful force.
Option C. Incorrect answer. He is guilty of no offence, because he never intended contact and no contact occurred.
Option D. Incorrect answer. He is guilty of both assault and battery, because the other man had to move to avoid him.
Option E. Incorrect answer. He is guilty of no offence, because he was confident the swing would miss and was not reckless.

Why

The correct answer is A. The mens rea of common assault is an intention, or recklessness, as to causing the victim to apprehend immediate unlawful force. He deliberately set out to make the other man think he was about to be hit, which is precisely the state of mind the offence requires, and the actus reus followed because the other man did apprehend the blow and pulled his head back.

B is incorrect because battery requires the application of force, and its mens rea is an intention or recklessness as to applying force. He intended neither, and no force was applied.

C is incorrect because an intention to make contact has never been necessary for assault; that requirement belongs to battery.

D is incorrect because battery cannot be made out where there was no contact at all, however alarming the swing was.

E is incorrect because his confidence that the swing would miss goes only to whether he risked applying force. It does not touch his intention to frighten, which is what makes the conduct an assault.

Why

B is incorrect because battery requires the application of force, and its mens rea is an intention or recklessness as to applying force. He intended neither, and no force was applied.

C is incorrect because an intention to make contact has never been necessary for assault; that requirement belongs to battery.

D is incorrect because battery cannot be made out where there was no contact at all, however alarming the swing was.

E is incorrect because his confidence that the swing would miss goes only to whether he risked applying force. It does not touch his intention to frighten, which is what makes the conduct an assault.