Nafiz ImtiazAraf[1]

*Assault and Battery are distinct crimes with distinctive features. The following article reflects on the blurring of lines between the two crimes due to the contemporary usage of the word assault*

A word might usually have a very different legal meaning and a different general meaning, and it is imperative for a lawyer to understand the meaning of a word, especially when it is about an offence and such is the case with regards to ‘assault’.

For a legal system to be efficient, there must be a ‘Rule of Law’, and an important component of the rule of law is the principle of legality. A significant aspect of the principle of legality is that the law should be ‘clear’ and ‘readily available to the public’.[2] And this is one of the major premises under which we shall discuss the debate regarding the meaning of the word ‘assault’ and the how such meaning has come about because of the similar and relative nature of the offences of ‘assault’ and ‘battery’.

An assault is committed when the accused “intentionally, or recklessly, caused another person to apprehend immediate and unlawful personal violence”[3]. The House of Lords confirmed this definition of the offence in R v Ireland; Burstow.[4]

Battery is “the actual intended use of unlawful force to another person without his consent”[5], this also being confirmed by the House of Lords in R v Ireland; Burstow.[6]

The difference between assault and battery lies in the fact that, while battery occurs when there is any application of force of any magnitude, assault occurs when there is only an apprehension that a force may be applied and not the actual application of it.

There has been much debate as to whether assault and battery are common law or statutory offences. The court in DPP v Little[7] stated that battery and assault are actually separate and statutory offences, even though the elements of these offences can only be found in case law.[8]  However, a contrary view to DPP v Little was taken in Haystead[9], though what was said in Haystead was only obiter and DPP v Little[10] was not referred to in this instance.[11]

While the definitions of ‘assault’ and of ‘battery’ are derived from case law, however the penalties for assault and battery can be found in the Criminal Justice Act[12], which is a statute. While common assault and battery are fairly distinct and separate crimes[13], the extent of penalty a judge can impose for either offence are the same. Jones v Sherwood[14] mentioned that ‘Assault and battery’ or ‘Assault or battery’ convictions will be quashed because of the rule against duplicity, which is that a person cannot be convicted on a written charge which charges more than one offence or alternative offences,[15] hence reinforcing the approach that assault and battery are in fact separate offences. However, the decision in R (Kracher) v Leicester Magistrates Court[16] , where the court held that a charge of battery should be construed as ‘assault by beating’, clarifies the distinction between assault and battery while showing their inter-relation.

Initially, the Law Commission stated in a report in 1993 that assault should cover both psychic assault and battery.[17] However, over time their opinion changed and recently the Law Commission said in a consultation scoping paper[18] in 2014 that it believed that assault and battery should be treated as separate offences rather than two sides of one offence[19].This discussion stems from the fact that over time, assault has come to mean both ‘common assault’ and ‘battery’[20], and with some academics considering that assault was simply an attempted battery.[21]

With the introduction of the Human Rights Act 1998, it became enshrined under statute that no one should face more severe penalties than that he should be otherwise legally liable to suffer[22], and hence it should be made particularly clear what assault means if we are to respect the Human Rights Act 1998, since common sense dictates that it is more likely that a court will give a more significant penalty on those convicted of battery than those convicted of assault.

As seen from the debate, the confusion primarily arises because ‘assault’ has a vastly different general meaning than its legal meaning, and this has seeped into the law at times and led to confusion to how exactly the law should be construed. Another factor that is the cause of the blurring of lines is that, most actions usually lead to both an assault followed by a battery. For example, if person A punches person B, the moment the action is initiated and punch is begun to be thrown, person B apprehends the physical harm coming his way, and the prerequisites of the offence of assault is satisfied, and the moment the punch hits person B and the action is completed, a battery is performed. While the term ‘common assault’[23] has been used to aid the courts in distinguishing assault from battery, since assault has an ambiguous interpretation, however, giving the offences of common assault and of battery a statutory footing with distinct definitions would do a great deal to dissipate any confusion regarding the interpretation of ‘assault’ since, with a statute that explicitly expresses the definition of both assault and that of battery, their meanings would no longer be up to be interpreted differently by the courts or academics since statutory law is supreme in the United Kingdom. This will leave little room for debate, as long as all the elements of the offences are separately expressed in the statute clearly and unambiguously. That in turn would lead to less time being consumed by the courts in interpreting the offences and hence lead to cases being dealt with faster, making the entire legal system much more efficient, and lawyers would also be able to advise their clients more appropriately.



















[1]NafizImtiazAraf is a final year law student pursuing his LLB from BPP University under its Full Time Distance Learning Programme at London College of Legal Studies (South), Dhaka (Bangladesh)

[2] Jonathan Herring, Criminal Law: Text, Cases And Materials (Seventh Edition, OUP) Chapter 1

[3]Fagan v MPC [1969] 1 QB 439

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

[5]Fagan v MPC [1969] 1 QB 439

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

[7]DPP v Taylor; DPP v Little [1992] 1 QB 645

[8] Nicola Monaghan, Criminal Law: Directions (4th Edition, OUP)

[9]Haystead v Chief Constable of Darbyshire [2000] 2 Cr App R 339

[10]DPP v Taylor; DPP v Little [1992] 1 QB 645

[11]Richard Card & Jill Molley, Card, Cross and Jones Criminal Law(22nd Edition, OUP)

[12] Criminal Justice Act 1988, s 39

[13]R v Nelson [2013] EWCA Crim 30

[14]Jones v Sherwood[1942] 1 KB 127

[15]Richard Card & Jill Molley, Card, Cross and Jones Criminal Law(22nd Edition, OUP)

[16]R (on the application of Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin)

[17]Law Commission, Legislating the Criminal Code, Offences Against the Person and General Principles (Report no 218, 1993)

[18]Law Commission Consultation Scoping Paper, Reform of Offences Against the Person(CP No 217, 2014)

[19]Jeremy Horder,Ashworth’s Principles of Criminal Law (Eighth Edition, OUP)

[20]Michael Jefferson, Criminal Law (Twelfth Edition, Pearson Education Limited)

[21]Michael Jefferson, Criminal Law (Twelfth Edition, Pearson Education Limited)

[22] Human Rights Act 1998, sch 1, article 7, s 1

[23] Criminal Justice Act 1988, S 39