In this blog post, we will be looking at the offence of assault in criminal law and how it is defined and tried in courts. Assault is a common law offence, meaning that the definition of it is only found in case law, not in a statute. However, the punishment for assault is found in s 39 of the Criminal Justice Act 1988, stating that there can be a maximum fine of £5,000 and/or a term of imprisonment of six months. Assault is a summary offence, meaning that it can only be tried in a magistrates’ court. We will look at the definition of assault in criminal law, then consider each part of this in turn, thinking about what requirements must be met for a successful conviction.
The definition of assault is taken from Fagan v MPC [1969] 1 QB 439, where the defendant assaulted a police officer by stopping his car on a policeman’s foot, then refusing to remove his car when the defendant asked him to. Although he did not deliberately stop his car on the victim’s foot, he made the intention when he wouldn’t remove it. The actus reus of assault is defined in this case as causing the victim to apprehend immediate and unlawful personal violence. This definition has four separate parts, which we will look at in turn. In addition, the mens rea of assault is also taken from Fagan v MPC and is defined as being either intention or recklessness.
Apprehend
The first element of the actus reus is to apprehend, i.e., the defendant needs to anticipate that the violence is about to happen. It should be noted that the defendant does not need to fear the violence, just anticipate it. Originally, it was thought that only actions could amount to an assault but it was later stated in R v Wilson [1955] 1 WLR 493 that words alone could amount to an assault. R v Ireland [1997] 3 WLR 534 went further by deciding that just silence could also be an assault. However, if there is no anticipation of violence then there is no assault. In the case R v Lamb [1967] 2 QB 981, two boys were playing with a gun, when one of them pointed it at the other and pulled the trigger. As they both honestly believed the gun was not loaded, there was no apprehension of violence and therefore no assault.
Immediate
For an assault to occur, the threat must be immediate, so the victim must apprehend that the force will be applied there and then. For example, if the assault is the defendant shaking their first at the victim, this will be immediate if the victim is standing in front of them. However, if the victim is safely removed from the victim, for example, by a secure window, the threat is not immediate and so there is no assault. This has been somewhat revoked in certain circumstances. In the case Smith v Chief Constable of Woking (1983) 76 Cr App R 234, it was decided that the defendant standing outside the victim’s window and staring in at her did cause her to apprehend immediate violence due to not knowing what his next actions would be.
Unlawful
The violence apprehended must be of the unlawful type. For example, a civilian threatening to grab and restrain another civilian in the street would be using unlawful force. On the other hand, a police officer doing a similar thing to a suspected criminal would probably not be counted as unlawful force. Another exception to what constitutes unlawful force occurs when the victim consents to the physical force. How much force can be used is still debatable, but it is a valid defence. Another situation that might make violence lawful is self-defence (or prevention of crime), as this is necessary to attempt to avoid another negative outcome. The victim of one crime cannot be required to not defend themselves.
Personal Violence
Personal violence has two elements, personal and violence. Personal simply means that it must be targeted towards a person, so property damage would not suffice. However, the word violence is misleading in that very little force is actually required for the offence of battery to be proved. Consequently, the apprehension of any application of force is enough to prove assault and any touching will be sufficient. Indeed, even spitting on the victim has been interpreted as a battery, so the victim apprehending that they will be spat on will qualify as an assault.
Mens Rea
As mentioned above, the mens rea of assault is either intention to cause the victim to apprehend immediate and unlawful personal violence or recklessness as to whether the victim would apprehend immediate and unlawful personal violence. Subjective recklessness also applies to the offence of assault.
Wrapping Up
I hope that this helps you to understand the offence of assault and its definition. In my next blog post, we will be looking at the associated offence of battery, so come back in two weeks for that!
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