Common assault and battery are the most basic offences against the person in English law. They sit at the bottom of the hierarchy of non-fatal offences, below actual bodily harm (ABH) under s.47 OAPA 1861 and grievous bodily harm (GBH) under s.20 and s.18 OAPA 1861. Although they are considered relatively minor, they are prosecuted frequently and you need to understand the precise legal definitions and the key case law inside out.
In the SQE, you will often be asked to identify whether an offence has been committed and, if so, which one. The distinction between assault and battery, and between these and the more serious offences under the OAPA 1861, is fundamental. You need to know the actus reus and mens rea of each offence, the key defences (especially consent), and how the offences are sentenced. This topic also feeds into s.47 ABH because common assault or battery is the underlying act required for s.47.
| Offence | Source | Maximum Sentence | Key Requirement |
|---|---|---|---|
| Common assault / battery | Common law (s.39 CJA 1988) | 6 months imprisonment | Intentional or reckless causing of fear or unlawful force |
| ABH | s.47 OAPA 1861 | 5 years imprisonment | Assault or battery causing actual bodily harm |
| GBH / wounding (unlawful) | s.20 OAPA 1861 | 5 years imprisonment | Unlawful wounding or causing GBH (reckless as to some harm) |
| GBH / wounding (with intent) | s.18 OAPA 1861 | Life imprisonment | Unlawful wounding or causing GBH with intent to cause GBH |
Common assault is the act of intentionally or recklessly causing another person to apprehend the immediate infliction of unlawful force. Notice the key elements: it is about causing fear or apprehension, not about actual physical contact. The victim must fear that force is about to be applied to them. If you swing a fist at someone and they flinch, that is an assault even if you miss. The important point is that the victim believed they were about to be hit.
The word "apprehend" in this context does not mean the victim was terrified or fleeing in panic. It simply means they were aware of and believed the threat. Even a momentary awareness that force might be imminent is enough. The victim does not need to show they were frightened - just that they perceived the threat as real.
R v Ireland is a landmark case. The 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. The earlier rule that words could not constitute an assault was outdated and wrong. Lord Steyn stated that the proposition that an assault could not be committed by words was inconsistent with the modern approach to psychology and the understanding of psychiatric harm.
In R v Constanza, the defendant pursued a woman with unwanted attention. He sent her threatening letters and drove past her shouting abuse. She developed a severe depressive illness. The court held that the apprehension of immediate violence could arise from words or gestures alone, and that "immediate" meant sufficiently immediate to the victim's state of mind. The defendant was convicted of assault and also of causing ABH (the psychiatric injury). This case shows that you do not need to be physically present to assault someone.
In R v Mehta, the defendants shouted abuse and threats at the victim through his front door. The Court of Appeal confirmed that words alone can constitute an assault. The key question is whether the words caused the victim to apprehend immediate unlawful force. Shouting "I am going to kill you" through a door could be an assault if the victim reasonably believes the threat is immediate and the defendant is capable of carrying it out.
While words can constitute an assault, they can also negate one. If someone swings a fist but immediately shouts "only joking", the victim may no longer apprehend immediate force and there may be no assault. The context and timing of the words matter. However, if the words themselves create the apprehension (as in Ireland and Constanza), then they form part of the assault.
For an assault, the victim must apprehend the immediate infliction of force. This does not mean the force must be instantaneous - it means the victim must believe it is about to happen. The concept of immediacy is assessed from the victim's perspective. In Constanza, the court held that "immediate" was to be construed in the context of the victim's state of mind - what mattered was the victim's perception of immediacy, not an objective assessment of when force would actually be applied.
Tuberville v Savage is a classic case on conditional threats. The defendant placed his hand on his sword and said to the victim, "If it were not assize-time, I would not take such language from you." The court held this was NOT an assault because the conditional nature of the threat negated the apprehension of immediate force. The victim could reasonably understand that the defendant was not about to strike him because it was assize-time (when judges were in town and the law was strictly enforced). A conditional threat may not be an assault if the condition makes it clear that force will not be applied immediately.
The courts have taken a flexible approach to immediacy. The modern view is that "immediate" should be broadly construed. What matters is whether the victim was caused to fear that force was imminent. This is particularly relevant in cases involving telephone calls, letters, or online threats where the defendant is not physically present. Constanza extended the concept of immediacy significantly.
Battery is the intentional or reckless application of unlawful force to another person. Unlike assault, battery requires actual physical contact. The force does not need to be violent or painful - any unwanted touching can amount to a battery. Pushing someone, spitting at them, grabbing their arm, or even throwing a drink over them can all be battery. The key is that the defendant applied force to the victim's body without consent and without lawful justification.
In Collins v Wilcock, the court drew an important distinction between battery and ordinary social interactions. The defendant, a policewoman, grabbed the claimant's arm to prevent her walking away during an interview. The court held that this was a battery. However, the court also stated that not every touching is a battery. The ordinary jostlings of everyday life are not assaults or batteries. Touching a person in a crowded street, for example, is not battery because it is generally impliedly consented to as part of everyday life. The question is whether the touching goes beyond what is acceptable in ordinary conduct.
DPP v P is a key case on the minimum level of force required for battery. The defendant, a schoolteacher, removed a 13-year-old boy from a classroom by pulling his ear. The Divisional Court held that any touching of another person, however slight, may amount to a battery. The touching does not need to cause pain or injury. The court also confirmed that there is no requirement that the victim be aware of the touching at the time it occurs. This means you can battery someone who is asleep or unconscious.
The decision in DPP v P confirmed that the victim does not need to be aware of the touching for a battery to occur. This is important because it distinguishes battery from assault. For assault, the victim must apprehend immediate force (so they must be aware of the threat). For battery, the victim simply needs to be touched. Touching someone who is asleep, unconscious, or very drunk can therefore be a battery even though they have no awareness of it. This principle has significant implications in sexual offence cases.
Remember Collins v Wilcock: the ordinary jostlings of everyday life are not batteries. Bumping into someone on a busy pavement, brushing past someone in a corridor, or a handshake are not batteries because society implicitly consents to these minor contacts. The touching must be hostile or at least outside the scope of what is normally acceptable in the circumstances. Hostility does not mean ill-will - it simply means the touching was not consented to in the circumstances.
The mens rea for both assault and battery is the same: the defendant must either intend to cause the victim to apprehend immediate unlawful force (for assault) or intend to apply unlawful force (for battery), or be reckless as to whether this occurs. Recklessness here means the defendant foresaw a risk that the victim would apprehend force (assault) or that force would be applied (battery) and it was unreasonable for them to take that risk. This is subjective recklessness (following the principles in R v Cunningham [1957]).
For common assault and battery, you only need to prove the defendant intended or was reckless as to the assault or battery itself. You do NOT need to prove the defendant intended or foresaw any particular harm or injury. This is crucial when you move on to s.47 ABH, where the mens rea is the same as for common assault/battery - the defendant only needs to intend or be reckless as to the assault or battery, not the ABH that results.
Consent is a defence to assault and battery. If the victim consents to the application of force, then the force is not unlawful and there is no offence. However, consent is not a blanket defence. Even if the victim consented, the court may still hold that the force was unlawful if the activity causing the injury was not one that society should accept as being consented to. The key question is whether the consent was real and whether the nature of the activity makes it outside the scope of acceptable consent.
In R v Jones, the defendant was charged with assault after causing injury during a rugby match. The court held that consent was a defence to the normal tackles and contacts that occur in the course of a sporting event. Players who take part in a contact sport impliedly consent to the normal risks of that sport, including the risk of injury from lawful play. However, consent does not extend to deliberate infliction of injury outside the rules of the game, or to conduct that is so reckless as to go beyond what a player could reasonably be taken to have consented to.
In R v Billinghurst, the defendant and a work colleague were engaged in horseplay at work. The defendant struck the victim with a piece of metal, causing a serious injury. The court held that the jury should consider whether the victim had consented to the horseplay and, if so, whether the defendant had gone beyond the scope of what was consented to. Horseplay can be a defence to assault and battery if the victim was a willing participant, but the defendant must not have acted maliciously or gone beyond what was implicitly agreed.
In R v Wilson, the defendant branded his wife's buttocks with a hot knife at her request, as part of their sexual relationship. The Court of Appeal held that the husband's conviction for ABH should be quashed because the wife had consented. However, this case has been criticised and should be treated with caution. It was decided on a very narrow basis and may be limited to situations where the parties are in a stable relationship and the activity is genuinely consensual. It should NOT be treated as authority that all consensual activity is lawful - the later case of R v Brown [1993] remains the leading authority on consensual harm.
R v Brown is the leading case on consent to harm. A group of homosexual men engaged in consensual sadomasochistic activities causing actual bodily harm and more serious injuries. The House of Lords held that consent was not a defence to offences involving the intentional infliction of actual bodily harm. Public policy requires that people cannot consent to the infliction of bodily harm, except in narrowly defined categories (sport, surgery, etc.). This case remains good law and limits the scope of consent significantly.
In the medical context, consent is a defence to what would otherwise be a battery. A doctor who performs surgery or administers treatment with the patient's informed consent is not committing a battery. However, the consent must be informed - the patient must understand, in broad terms, the nature of the procedure and what it involves. If a patient does not consent, or their consent is not informed, the treatment may amount to a battery. This is why hospitals require consent forms before procedures.
Section 47 of the Offences Against the Person Act 1861 provides that it is an offence to assault or beat any person, whereby actual bodily harm shall be occasioned. This means that the prosecution must prove three elements: (1) the defendant committed an assault or battery, (2) the assault or battery caused actual bodily harm to the victim, and (3) the mens rea for the assault or battery (but NOT for the ABH). The maximum sentence is 5 years imprisonment.
Actual bodily harm means any hurt or injury that interferes with the health or comfort of the victim. It does not need to be permanent or serious, but it must be more than merely trifling or transient. Cuts, bruises, swelling, and scratches have all been held to be ABH. The test is an objective one: would the injury interfere with the health or comfort of a reasonable person? A momentary discomfort or a very minor scratch that heals in hours would probably not be ABH, but anything that causes more than trivial pain or discomfort likely is.
In R v Miller, the defendant struck the victim on the jaw and knocked out two of her teeth. The court stated that "bodily harm" needs no explanation and "actual" means no more than the injury must interfere with the health or comfort of the victim. The hurt must be real, not imaginary, but it does not need to be serious. This case established the standard test for what constitutes ABH.
In R v Donovan, the defendant beat a woman with a cane for sexual gratification. The court confirmed the definition of actual bodily harm as any hurt or injury calculated to interfere with the health or comfort of the prosecutor. The court also held that consent was not a defence where the injury was of a nature that the public interest required the parties not to consent. This case is an early authority on both the definition of ABH and the limits of consent.
Both R v Ireland and R v Constanza established that psychiatric harm can constitute actual bodily harm. In Ireland, the repeated silent telephone calls caused the victims to suffer psychological damage. In Constanza, the threatening letters and behaviour caused the victim to develop a severe depressive illness. The House of Lords in Ireland confirmed that recognised psychiatric illness is capable of being actual bodily harm. This means that if an assault causes the victim to suffer a recognised psychiatric condition (such as anxiety, depression, or PTSD), this can amount to ABH.
For psychiatric harm to count as ABH, it must amount to a recognised psychiatric condition. Ordinary emotions such as fear, distress, or panic are not enough on their own. The victim would usually need medical evidence of a diagnosable condition. However, the harm does not need to be permanent or severe - even a relatively mild but recognised psychiatric condition can be ABH.
R v Savage and R v Parmenter is the leading authority on the mens rea for s.47 ABH. In Savage, the defendant threw a beer glass in a pub, which hit and injured the victim. In Parmenter, the defendant (who had a mental condition) injured his baby son by being too rough. The House of Lords held that the mens rea for s.47 is the same as for common assault or battery - the prosecution must prove only that the defendant intended or was reckless as to the assault or battery, NOT that they intended or foresaw actual bodily harm. This is a constructive liability offence: the defendant is liable for the consequences of their assault or battery, even if they did not foresee the harm that resulted.
Section 47 is sometimes called the "catch-all" offence because it is relatively easy for the prosecution to prove. They only need to show the defendant intended or was reckless as to the assault or battery, and that ABH resulted. The defendant does not need to have foreseen the ABH. This means even relatively minor assaults that unexpectedly cause significant harm can result in a conviction for s.47 with a maximum of 5 years imprisonment. It is important to consider whether the defendant has a defence (consent, self-defence, etc.) that would negate the underlying assault or battery.
Common assault and battery are triable either way offences under section 39 of the Criminal Justice Act 1988. Although the offences themselves are common law, s.39 gives them statutory footing for sentencing purposes. The maximum sentence on summary conviction (in the Magistrates\u2019 Court) is 6 months imprisonment. On indictment (in the Crown Court), there is no separate maximum because if the assault caused ABH, it would be charged as s.47 instead. In practice, common assault and battery that do not result in ABH are dealt with in the Magistrates\u2019 Court.
| Offence | Statute | Mode of Trial | Maximum Sentence |
|---|---|---|---|
| Common assault / battery | Common law (s.39 CJA 1988) | Summary only | 6 months imprisonment |
| ABH (s.47 OAPA 1861) | s.47 OAPA 1861 | Either way | 5 years imprisonment |
| GBH / wounding (s.20 OAPA 1861) | s.20 OAPA 1861 | Either way | 5 years imprisonment |
| GBH / wounding with intent (s.18 OAPA 1861) | s.18 OAPA 1861 | Indictable only | Life imprisonment |
The Sentencing Council publishes guidelines for assault offences. For common assault and battery under s.39 CJA 1988, the court considers both aggravating and mitigating factors to determine the appropriate sentence within the range of a discharge up to 6 months imprisonment. The guidelines place the offence into one of three categories of culpability (high, medium, or lesser) and one of two categories of harm, which then determines the starting point for the sentence.
For the least serious common assaults (low culpability and minor harm), a conditional discharge or fine is typical. For medium culpability, a community order is common. For high culpability or significant harm, the court may impose a custodial sentence of up to 6 months. The court will consider whether a custodial sentence is truly necessary, particularly for first-time offenders who have shown remorse. Bear in mind that common assault is a "summary only" offence, so it is always dealt with in the Magistrates\u2019 Court.