Assault vs Battery: UK Definitions, Cases, Defences and Pena...

Introduction

People often use “assault” and “battery” as if they mean the same thing, but under the law of England and Wales they are distinct offences. Both are common law offences, with sentencing set by section 39 of the Criminal Justice Act 1988. In short:

• Assault is about causing someone to fear immediate unlawful force.
• Battery is about applying unlawful force, even if only a minor touch.

This guide explains the difference, the elements the prosecution must prove, common defences, key cases, and how these offences are charged and sentenced.

What You'll Learn

• Clear definitions of assault and battery under UK law
• The actus reus and mens rea for each offence
• How “immediacy” works for assault and what counts as contact for battery
• Real case examples showing where the line is drawn
• Available defences: self-defence, duress, and consent
• Sentencing under s.39 Criminal Justice Act 1988 and when cases escalate to ABH or GBH
• Practical points for evidence, charging, and common pitfalls

Core Concepts

Assault: Actus Reus and Mens Rea

Assault (often called “common assault”) is committed where the defendant intentionally or recklessly causes another to apprehend immediate unlawful violence.

• Actus reus (what must happen)

  • The victim must reasonably apprehend immediate unlawful force.
  • No physical contact is required.
  • Words, gestures, and even silence can be enough.
  • “Immediate” means imminent rather than instantaneous; it can cover a short period (e.g., threats that could be carried out at once).

• Mens rea (state of mind)

  • Intention to cause the apprehension, or
  • Recklessness as to causing that apprehension.

• Key points

  • Words can negate an assault (e.g., “If it were not assize time…”: the classic Tuberville v Savage principle).
  • Threats may be made by telephone or in person; context matters.
  • The victim’s belief must be reasonable given the circumstances, but the defendant is assessed on what they intended or foresaw.

Typical examples:

• Raising a fist or mimicking a strike at close range.
• Making a threat that suggests immediate harm.
• Silent phone calls or repeated communications that cause fear of immediate violence.

Authorities often cited:

• R v Ireland [1998] AC 147 (silent phone calls can amount to assault).
• R v Constanza [1997] (letters and conduct creating fear of immediate violence can be sufficient).
• Logdon v DPP [1976] (fake weapon can still cause real apprehension).

Battery: Actus Reus and Mens Rea

Battery is the intentional or reckless application of unlawful force to another person.

• Actus reus

  • Any unlawful touching will suffice; it need not cause injury.
  • Contact can be direct (a slap) or indirect (causing someone to be struck by an object).
  • Touching clothing can be enough if it amounts to unlawful force.
  • Omissions can amount to battery where a duty arises (e.g., creating a danger and failing to prevent harm).

• Mens rea

  • Intention to apply unlawful force, or
  • Recklessness as to the application of force.

• Key points

  • The slightest unlawful touching can be a battery.
  • Everyday social contact is not battery due to implied consent.
  • A continuing act can allow mens rea to form after initial contact.

Typical examples:

• Slapping someone during an argument (classic battery).
• Pushing or grabbing without lawful excuse.
• Setting a trap that leads to someone being harmed by contact.

Authorities often cited:

• Collins v Wilcock [1984] 3 All ER 374 (everyday contact and the minimal force threshold).
• Fagan v MPC [1969] 1 QB 439 (continuing act; mens rea can coincide with ongoing contact).
• DPP v K [1990] 1 WLR 1067 (indirect application of force).
• R v Thomas (1985) 81 Cr App R 331 (touching clothing amounts to battery).
• DPP v Santana-Bermudez [2003] EWHC 2908 (QB) (omission causing a battery).

How They Differ and How Cases Escalate

• Core difference

  • Assault: causes the victim to fear immediate unlawful force; no contact required.
  • Battery: involves unlawful contact; injury is not required.

• Charging

  • “Common assault” under s.39 CJA 1988 covers both assault and battery.
  • Police and prosecutors often use “assault by beating” to describe battery.
  • If actual bodily harm is caused, the matter may be charged under s.47 Offences Against the Person Act 1861 (ABH).
  • More serious injuries may be charged under s.20 or s.18 OAPA 1861 (GBH/wounding).

• Sentencing overview

  • Common assault/battery: up to 6 months’ custody and/or a fine in the magistrates’ court (sentencing guidelines apply; fines may be unlimited).
  • Racially or religiously aggravated common assault (s.29 Crime and Disorder Act 1998): triable either way, higher maximums.

Key Examples or Case Studies

Logdon v DPP [1976] Crim LR 121

• Context: The defendant threatened the victim with what appeared to be a real gun (it was a replica).
• Held: Assault was made out because the victim apprehended immediate unlawful violence, even though the weapon was not real.
• Application: Focus on the victim’s apprehension, not the actual ability to carry out the threat.

R v Ireland; R v Burstow [1998] AC 147

• Context: Silent telephone calls and stalking behaviour.
• Held: Silence and conduct can amount to assault where they cause fear of immediate violence.
• Application: Words (or silence) are enough; consider the immediacy and context.

Collins v Wilcock [1984] 3 All ER 374

• Context: Police officer took hold of a woman’s arm without arrest; she scratched the officer.
• Held: Any touching may amount to a battery if it goes beyond everyday contact. The initial touching was unlawful; the defendant’s reaction was judged in that context.
• Application: Distinguish lawful from unlawful touching; everyday jostling is generally allowed.

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

• Context: The defendant accidentally drove onto an officer’s foot, then refused to move.
• Held: The continuing act of the car on the foot, combined with the later-formed intention, amounted to battery.
• Application: Mens rea can coincide with a continuing act; timing can be satisfied where contact persists.

DPP v Santana-Bermudez [2003] EWHC 2908 (QB)

• Context: Defendant denied having needles; officer was injured on a needle during a search.
• Held: An omission can constitute battery where a duty arises from creating a danger.
• Application: Failure to prevent harm after creating a risk can complete the actus reus.

R v Barnes [2004] EWCA Crim 3246

• Context: Serious tackle during a football match leading to injury.
• Held: In contact sports, consent covers conduct within the rules and the usual risks of the sport. Criminal liability arises when conduct goes sufficiently beyond what is acceptable.
• Application: Consent in sport is context-dependent; look at the level of play, rules, and degree of force.

Practical Applications

• Proving assault

  • Record the victim’s account of fear of immediate violence.
  • Note words, gestures, proximity, and timing.
  • Preserve evidence of calls/messages and prior conduct to show context.

• Proving battery

  • Document any contact, no matter how minor, and how it was applied (direct or indirect).
  • Photograph injuries if any, but remember injury is not required.
  • Consider whether the defendant created a danger and failed to act.

• Choosing the right charge

  • No injury: consider common assault (assault or battery).
  • Injury beyond transitory or trifling: consider s.47 ABH.
  • Serious injury: consider s.20/s.18 OAPA 1861.
  • If there is a racial or religious element, consider s.29 Crime and Disorder Act 1998.

• Self-defence checks (Criminal Law Act 1967 s.3; Criminal Justice and Immigration Act 2008 s.76)

  • Did the defendant honestly believe force was necessary?
  • Was the force used reasonable in the circumstances as they believed them to be?
  • Consider imminence, proportionality, and whether there were options short of force. Pre-emptive force can be lawful if necessary (Beckford v R).

• Duress assessment (R v Graham; R v Hasan)

  • Was the defendant compelled by threats of death or serious injury as they honestly believed them (subjective)?
  • Would a sober person of reasonable firmness sharing relevant characteristics have acted similarly (objective)?
  • Not a defence to murder, but may apply to common assault/battery.

• Consent

  • Explicit or implied consent can negate assault/battery (e.g., sport, social touching, medical treatment).
  • Limits: cannot generally consent to actual bodily harm or worse, subject to recognised exceptions (Brown; Barnes; Wilson).
  • Check whether the conduct went beyond accepted norms in the setting.

• Evidential tips

  • Capture contemporaneous messages, call logs, CCTV, and witness accounts.
  • Avoid focusing solely on injury; for assault, fear is enough; for battery, any unlawful touch suffices.
  • Note intoxication: common assault and battery are basic intent offences; voluntary intoxication usually offers little help to the defence (Majewski).

• Sentencing snapshot

  • Common assault/battery: up to 6 months’ custody and/or a fine (Sentencing Council guidelines apply).
  • Aggravating factors: previous violence, targeting vulnerable victims, use of a weapon, location (e.g., domestic setting).
  • Mitigating factors: provocation (short of a legal defence), remorse, early guilty plea, lack of previous convictions.

Summary Checklist

• Assault: caused the victim to fear immediate unlawful force; no contact needed.
• Battery: unlawful contact, even minimal; injury not required.
• Mens rea for both: intention or recklessness.
• Words or silence can amount to assault; gestures count.
• Everyday social contact is not battery due to implied consent.
• Indirect force and certain omissions can satisfy battery.
• Self-defence: honest belief + reasonable force in the circumstances (subjective and objective checks).
• Duress: threats of death/serious injury; two-stage test; not for murder.
• Consent: valid in sport and everyday contact within accepted limits; there are boundaries.
• Charging and escalation: consider s.47 ABH or more serious offences where injury is present.
• Sentencing: s.39 CJA 1988; up to 6 months’ custody and/or a fine; aggravated forms have higher maxima.

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