Criminal Barrister Quentin Hunt examines the offences of Common Assault and Battery. 

Introduction

Common Assault and Battery are the least serious of the offences against the person. However, they are criminal offences and conviction still carries a criminal record and a sentence that can potentially involve imprisonment, so they are still to be taken seriously, particularly by those with no previous convictions who wish to maintain their good character. 
In this article I will examine the meaning of assault and battery in UK law, I will go on to explain the elements of each offence, outline available defences, including self-defence, and discuss sentencing.

What Is Assault? What Is Battery?

Both crimes are traditionally what lawyers call ‘common law offences’. This means that the definition of the offences is contained within case law rather than statute. So, when I am looking at the definition below, I will cite some of the relevant and established case law that establishes how the offences are defined. 

An Assault is committed when a person intentionally or recklessly causes another to apprehend immediate unlawful violence (see the cases of Venna [1976] and Smith v Chief Superintendent Woking Police Station [1983]). 

Battery, or assault by beating, involves the actual infliction of unlawful force, however slight, upon another person (see the cases of Fagan v MPC [1969] and Haystead v DPP [2000]).

These offences are often misleadingly collectively referred to as common assault, however, the Appellate Courts have stressed that it is an important procedural step to distinguish between them, in charging and trial procedure (see: R. (Ward) v Black Country Magistrates’ Court [2020]).

Both offences are criminalised within s39 of the Criminal Justice Act 1988. 

The 'Elements' of the Offence

The prosecution must prove each 'element' of a criminal offence beyond reasonable doubt in order that a defendant can be convicted. An assault is often described as the act of causing fear of immediate unlawful violence.

To prove an assault, the prosecution must show:

•    An act (not an omission) by the defendant,
•    That caused the victim to apprehend immediate violence,
•    That the defendant intended or foresaw that result.

Words alone, or even silent telephone calls, can amount to assault if they produce the required apprehension (R v Ireland; Burstow [1998]).

The offence of Battery involves the unlawful application of force, this means that the prosecution must prove:

•    The application of force,
•    That is unlawful (i.e. not lawful self defence),
•    With intent or recklessness as to that application.
It can be direct (e.g., punching someone) or indirect (e.g., setting a trap). In Fagan v MPC, leaving a car tyre on a police officer’s foot was found to be a continuing act of battery.

The Mental Element

The mental element for both assault and battery is either intent or recklessness, as defined in Cunningham [1957] and clarified in later cases like G [2003]. It must be proved by the prosecution beyond reasonable doubt. 

For assault, the defendant must foresee that the complainant might fear immediate violence.
For battery, they must foresee that some force might be applied.

Defences to Assault and Battery

There are several recognised defences in law to offences of Assault and Battery, it is not possible to be exhaustive but here are some examples: 

Consent

Consent may be a defence where no serious harm is caused. For example, sports and medical treatment may imply lawful consent (Brown [1994]; Barnes [2005]). However, for serious harm, the defence usually fails unless the act falls into a specific category like surgery, sport, or tattooing (Wilson [1996]; Emmett [1999]).
Reasonable Chastisement
There is a limited defence for reasonable chastisement by parents, though this has been heavily restricted by the Children Act 2004 and abolished in Wales by the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020. There are proposals afoot for the law to be amended in England. 

Mistake of Fact

If a defendant genuinely believes in circumstances that would justify the use of force (e.g., self-defence), they may rely on that mistake—even if the belief was mistaken—provided it wasn’t due to voluntary intoxication (Williams (G); Beckford [1988]; O’Grady [1987]).

Self-Defence 

Self-defence allows a person to use reasonable force to protect themselves or others. This is governed by common law and section 76 of the Criminal Justice and Immigration Act 2008. The law can be summarised as follows:

•    The force used must be proportionate to the threat faced.
•    The defendant is judged on the facts as they honestly believed them to be, even if mistaken (Owino [1996])
•    Force may be pre-emptive, and there is no duty to retreat.

Where force is excessive or not justified, the defence will fail.

Identification

The prosecution must prove that the defendant was the person responsible for the assault, if identification cannot be proven to the relevant standard then the prosecution will fail. 

Sentencing and Procedure

These are summary offences, usually tried in the magistrates’ court. The sentencing is dictated by Sentencing Guidelines which weigh up the seriousness of the offence and the defendant's culpability in order to come to an appropriate sentence. The maximum sentence is six months’ imprisonment or a fine. Where committed against emergency workers or in aggravating contexts, offences may be triable either way, with a higher maximum sentence of up to two years (Assaults on Emergency Workers (Offences) Act 2018).

Conclusion

Assault and battery may seem like minor offences, but they carry significant legal consequences and can lead to imprisonment, fines, and a criminal record. For what appears to be relatively simple offences, the law can be quite complicated and it is important that the law is properly applied in order to give the defendant the best chance of success.  

Quentin Hunt is a criminal defence barrister who specialises in defending cases of assault and battery. If you are accused of a communications offence or if you face prosecution for such an offence, then you may wish to instruct an experienced advocate to give you a corner. You may contact Quentin for free, no obligation discussion about your case.  

Frequently Asked Questions
Can I be convicted of assault even if I never touched the person?
Yes. Assault is about causing someone to fear immediate violence, not actual contact.
What if the victim agreed to the contact?
Consent can be a defence, particularly in sports or social touching. However, it’s not a defence to serious injury unless in limited contexts like surgery or properly conducted sports.
Does it matter if I was drunk at the time?
Not usually. Assault and battery are crimes of basic intent, so voluntary intoxication is not a defence (DPP v Majewski [1977]).
Can I use force to protect myself?
Yes—reasonable self-defence is a complete defence if force used is proportionate and necessary under the circumstances as you believed them to be.