Common assault
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In criminal law, a common assault is a crime when the defendant either puts another in fear of injury or actually commits a battery. Under English law, the offence is now defined in s39 Criminal Justice Act 1988.
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[edit] General principles
Assault is not defined under s.39 of the Criminal Justice Act (1988) as this remains under the common law in the case of Venna. However, the said act contains the maximum sentence (of which is 6 months imprisonment) and the type of offence (which is a summary offence).
[edit] Actus reus
Both in the common law and under statute, the actus reus (Latin for "guilty act") of a common assault is committed when one person causes another to apprehend or fear that force is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable even though the victim may have a phobia although, if the defendant is aware of the psychological difficulty, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action although this might form a “menace” within the meaning of s22 Theft Act 1968 for the purposes of blackmail. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that he would batter the victim senseless but for the presence of a police officer watching them both, the victim is supposed to understand that he or she is in no immediate danger. But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a mobile phone is used to transmit the threat (whether orally or by SMS) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.
[edit] Mens rea
The mens rea (Latin for "guilty mind") is that this fear must have been caused either intentionally or recklessly. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly. This is usually a summary offence but, in some jurisdictions (e.g. in England and Wales where s40 Criminal Justice Act 1988 applies), it can be an additional charge on an indictment.
[edit] Status of offense
This is the least serious assault and, under s11 Domestic Violence Crime and Victims Act 2004, a common assault can be an alternative verdict to more serious offences of assault. In real terms, the degree of fear or the level of injury required for a conviction can be slight. Thus, even the most trivial of injuries can be a battery, whether as a scratch or bruise, so long as the contact can be proved. The distinction between common assault and actual bodily harm (ABH) under s47 Offences Against The Person Act 1861 (OAP), lies in the degree of injury that results. ABH is more than “transitory” but less than “really serious injury” which is the definition of grievous bodily harm under ss18 and 20 OAP Act 1861.
[edit] Assault on a constable
The fact that the victim is a police officer is not, in itself, an aggravating factor which would justify more serious charge. The criteria for a charge under under s47 OAP Act 1861 do not distinguish between members of the public and police officers as the victim. Under s89(1) Police Act 1996, it is an offence for a person to assault either:
- a constable acting in the execution of his or her duty; or
- a person assisting a constable in the execution of his or her duty.
This is a summary only offence which carries a maximum penalty of six months' imprisonment and/or a fine. According to R (Fullard) v Woking Magistrates' Court (2005) EWHC 2922 (Admin) a constable cannot be acting in the execution of his or her duty when unlawfully on private property. Thus, if the officer is not acting under the authority of a warrant, acting under a statutory or common law power of entry, or in hot pursuit, the person lawfully in possession of land is entitled to withdraw permission for the officer to remain. Should the officer refuse to leave, the officer will cease to be "acting in the execution of his or her duty". To make an effective withdrawal of permission, clear words must be used. Merely directing offensive remarks at the officer which amount to 'go away' will not necessarily withdraw any implied permission to enter or remain. Further, when properly required to leave, the officer must be allowed a reasonable opportunity to leave. However, once the opportunity to leave voluntarily has passed, it will not be an assault for the land owner to use reasonable force to cause the officer to leave.
However, motive may aggravate when the purpose of the assault is an intent to resist or prevent lawful arrest. Under s38 OAP Act 1861, this is a hybrid offence, which carries a maximum penalty on indictment of two years' imprisonment and/or an unlimited fine. This offence may also be used for assaults on store detectives or members of the public exercising a right to apprehend or detain an alleged offender committing an arrestable offence.
