Keith Mack
Common assault is a common law offence committed by a person who makes unlawful contact with another person or threatens to do so. The term 'assault' when used in legislation, commonly refers to both common assault and battery, although the two are distinct offences. Assault is typically paired with battery, with assault referring to the act that causes the victim to immediately apprehend harmful or offensive contact, and battery referring to the act that causes the actual contact. In the context of assault, 'reasonable apprehension' refers to the victim's reasonable belief that the act will lead to imminent harmful or offensive contact. Ordinary, harmless contact such as a handshake or a friendly pat on the back is not considered assault, even in situations where the victim may have a phobia.
| Characteristics | Values |
|---|---|
| Legal Definition | Making unlawful contact with another person or threatening to do so |
| Common Assault | An intentional or reckless act causing another person to apprehend immediate and unlawful personal violence |
| Common Assault in English Law | A person guilty of common assault shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both |
| Corporal Punishment | Administered to children by their parent or legal guardian is not legally considered assault unless it is deemed excessive or unreasonable |
| Reasonable Apprehension | Refers to the victim's reasonable belief that the act will lead to imminent harmful or offensive contact |
| Assault and Battery | Assault refers to the act that causes the victim to immediately apprehend a harmful or offensive contact, whereas battery refers to the act that causes the actual contact |
| Aggravated Assault | Assault committed under aggravating circumstances may be raised to aggravated assault |
| Assault on Emergency Workers | Any common assault or battery on an emergency worker is triable either way and subject to a maximum of 12 months' imprisonment if tried on indictment |
| Assault on Constable | Assaulting a constable acting in the execution of their duty is a summary offence with the same maximum penalty as common assault |
| Assault on a Person in Prescribed Occupation | Assault where the victim is engaged in a prescribed occupation or employment, such as hospital, retail, or emergency services workers, is an aggravated offence with a penalty of five years' imprisonment |
| Assault Resulting in Serious Harm | Causing serious harm includes harm that endangers or is likely to endanger a person's life, results in serious and protracted impairment of physical or mental function, or harm that results in serious disfigurement |
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What You'll Learn
Common assault is a statutory offence
Assault is a broad term that covers a range of offences, including common assault, battery, and aggravated assault. Common assault is a statutory offence, contrary to Section 39 of the Criminal Justice Act 1988, as held in DPP v. Taylor and DPP v. Little. Common assault is committed when one intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence. The actus reus of common assault is committed when one person causes another to apprehend or fear that force is about to be used, with the necessary intent to cause some degree of personal contact and possible injury. The apprehension of violence can be committed by action or words, as seen in R v. Ireland.
The distinction between common assault and common law assault is important. Common assault is a summary offence and is the least serious of all assault charges. Common law assault, on the other hand, is a more serious and indictable charge with a significantly higher maximum penalty, often requiring proof of actual injury or intent to cause harm. In Victoria, common assault is found in the Summary Offences Act 1966, while common law assault is specified in the Crimes Act 1958.
The penalty and mode of trial for common assault in England and Wales are provided by Section 39 of the Criminal Justice Act 1988, which states that common assault and battery are summary offences punishable by a fine, imprisonment for up to six months, or both. However, in cases of assault on emergency workers, the Assaults on Emergency Workers (Offences) Act 2018 added a subsection stating that common assault or battery on an emergency worker is triable either way and subject to a maximum of 12 months' imprisonment if tried on indictment.
It is important to note that consent negates assault, as seen in R v. Brown, and ordinary, harmless contact, such as accidental touching in crowded spaces or genuine tackles in contact sports, is not considered assault. Additionally, the defence of reasonable punishment for battery in England is confined to battery by section 58 of the Children Act 2004, while it is not a defence in Wales due to the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020.
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Corporal punishment of children
Corporal punishment has been defined by the UN Committee on the Rights of the Child as "any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light." This often involves hitting or spanking children with a hand or an implement like a belt or stick. While the use of corporal punishment on children is deeply rooted in various cultures and religions, it is increasingly being viewed as inhumane, with growing evidence of its negative impacts on children's well-being and development.
In the United States, England, Northern Ireland, Australia, and Canada, corporal punishment administered by a parent or legal guardian is not legally considered assault unless deemed excessive or unreasonable. However, what constitutes "reasonable" can vary in statutory and case law. Unreasonable physical punishment may be charged as assault or under separate statutes for child abuse. For example, in English law, the Children Act 2004 limits the availability of the lawful correction defence for common assault, and this defence was abolished in Wales in 2022.
The distinction between assault and corporal punishment lies in the intent and the degree of force used. Assault typically involves the intentional or reckless infliction of immediate and unlawful personal violence, resulting in bodily harm. On the other hand, corporal punishment may involve milder forms of physical force that are intended to cause pain or discomfort as a form of discipline.
The growing recognition of children's rights and the weight of evidence on the risks associated with corporal punishment have led to a shift in societal perspectives. Campaigns against corporal punishment have advocated for legal reforms to ban its use against minors, and 31 countries have enacted prohibitions against the physical punishment of children. Physicians now play a crucial role in encouraging parents to adopt constructive discipline approaches and strengthening child well-being.
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Assaulting a constable
Assault is typically considered an intentional tort, and it is often paired with battery. Assault refers to the act of causing the victim to immediately apprehend a harmful or offensive contact, while battery refers to the act that causes the actual contact.
It is important to note that the constable must be acting "in the execution of his duty" for this offence to apply. If the constable exceeds the remit of their duty, such as by acting unlawfully, the offence of assaulting a constable may not be established. The defendant does not need to be aware that the person they are assaulting is a constable.
In R (Fullard) v Woking Magistrates' Court, it was established that a constable cannot be acting in the execution of their duty when unlawfully on private property. If the constable is not acting under the authority of a warrant, statutory or common law power of entry, or in hot pursuit, the person lawfully in possession of the land may withdraw permission for the constable to remain. To effectively withdraw permission, clear words must be used, and the constable must be allowed a reasonable opportunity to leave. Once this opportunity has passed, it is not considered assault for the landowner to use reasonable force to cause the constable to leave.
In 2018, it became a specific offence to assault an emergency worker acting in the course of their functions under the Assaults on Emergency Workers (Offences) Act 2018. This applies to police officers, nurses, paramedics, firefighters, coastguards, prison guards, search and rescue workers, and other professions. The emergency worker does not need to be on duty or at work, they simply need to be performing a function that would typically fall within their duties.
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Reasonable apprehension
"Reasonable apprehension" is a key element of assault in common law. It refers to the victim's reasonable belief that an act will lead to imminent harmful or offensive contact. The victim does not need to prove fear, only that they were aware that such contact might occur. The legal standard is based on what an ordinary reasonable person in the same circumstances would have believed.
For instance, in the case of *Vetter v. Morgan*, the Court of Appeals of Kansas held that the defendant's threat and the surrounding circumstances could reasonably put the plaintiff in apprehension of imminent or immediate bodily harm.
Apprehension is distinct from fear. It refers to the awareness that an injury or offensive contact is imminent. The threatened harmful or offensive contact must be certain or likely to occur very soon. The term "harmful or offensive" is an objective standard, referring to touching that is likely to or capable of causing harm or offending a reasonable person by violating prevailing social standards of acceptable touching.
In determining whether a victim's apprehension was reasonable, the relationship between the victim and the tortfeasor may be considered. If the victim and tortfeasor have special knowledge of each other, this may be taken into account when assessing the reasonableness of the victim's apprehension.
In the context of assault, intent refers to the intention to cause a harmful or offensive contact with the victim, not the intention to cause harm or offence. The motive is immaterial; the tortfeasor may have only intended to scare the victim or make a joke.
To summarise, "reasonable apprehension" in common law assault means that a victim reasonably believed that an act would result in imminent harmful or offensive contact, regardless of their level of fear. This belief is assessed against the standard of a reasonable person in the same circumstances, and the specific relationship between the victim and tortfeasor may be considered.
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Aggravated assault
The use of a deadly weapon during an assault can elevate a criminal case from simple assault to aggravated assault. This enhancement typically applies regardless of whether the use of the weapon caused any injury. A simple assault does not require evidence of physical contact or injury, and proof of an attempt to cause harm is usually sufficient. The use of a deadly weapon in an assault puts the victim in serious fear for their safety, which is a factor that can enhance the charges and penalties. Objects such as guns, knives, swords, and brass knuckles are considered deadly or dangerous weapons.
Aggravating factors that can elevate an assault charge to the aggravated level vary from state to state. These factors may include the weapon used, the severity of the violence or harm, the type of victim targeted, or even the perpetrator's state of mind. For example, many states enhance an assault charge when the victim is a police officer, especially if the offender is retaliating for some official action.
In terms of penalties, aggravated assault can be charged to varying degrees with respective punishments. For instance, in New Jersey, aggravated assault stemming from causing serious bodily injury to another is a second-degree offense, which carries a punishment of 5-10 years in prison or a fine of up to $150,000, or both. On the other hand, knowingly pointing a firearm at another can be classified as a fourth-degree aggravated assault, with a punishment of up to 18 months in prison or a fine of up to $10,000, or both.
According to the FBI, the estimated rate of aggravated assaults in 2017 was 248.9 per 100,000 inhabitants, a decrease of 3.9% compared to the 2008 estimate. Of the aggravated assault offenses in 2017, 26.3% were committed with firearms, 25.4% with personal weapons such as hands, fists, or feet, 17.2% with knives or cutting instruments, and 31.1% with other weapons.
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Frequently asked questions
Common assault is defined as making unlawful contact with another person, or threatening to do so.
Unlawful contact is any intentional and unwanted physical force used against a victim. This can be direct or indirect.
In England and Wales, common assault is punishable by imprisonment for a term not exceeding six months, a fine not exceeding level 5 on the standard scale, or both.
Aggravated assault occurs when the victim is engaged in a prescribed occupation, such as a police officer, prison officer, or emergency services worker. The penalty for aggravated assault is five years' imprisonment.
Examples of conduct that would not constitute common assault include patting someone's shoulder to attract their attention or pushing between others to exit a crowded bus, provided these acts are done in a non-hostile and inoffensive manner.
