Research 3

A person commits an assault if he intentionally or recklessly causes¹ another person to apprehend the application to his body of immediate, unlawful² force³. An assault can be committed by words alone if they cause the necessary apprehension⁴. The requirement of the apprehension of immediate force is satisfied if the prosecution proves a fear of force at some time not excluding the immediate future⁵.

A person commits a battery if he intentionally or recklessly applies⁶ unlawful⁷ force to the body of another person⁸. The slightest degree of force, even mere touching, suffices⁹. It is not necessary that the victim should feel the force through his clothes: a touching of a person's clothes is the equivalent of touching him¹⁰. Without the application, however, of some force there cannot be a battery. Thus causing someone psychiatric harm by a threat does not constitute a battery¹¹. Similarly, the use of force merely to pull away from another does not constitute a battery¹².

Although an assault is a separate, independent crime and should be treated as such¹³, for practical purposes the term 'assault' is generally synonymous with 'battery' and is used to mean the actual intended use of unlawful force to another person¹⁴. Where there is actual as well as apprehended unlawful force the charge should be assault by beating rather than assault and battery since the latter form is duplicitous¹⁵.

1 As to causation see para 7 ante. A mere omission to act which creates the requisite apprehension is not enough: Fagan v Metropolitan Police Comr[1969] 1 QB 439, 52 Cr App Rep 700, DC. The only exception is where the defendant has created a dangerous situation (even inadvertently) in which case he is under a duty to take such steps as lie within his power to counteract the danger, and a failure to do so will suffice if it results in the necessary apprehension: DPP v Santana-Bermudez [2003] EWHC 2908 (Admin), [2004] Crim LR 471, DC (applying R v Miller [1983] 2 AC 161, 77 Cr App Rep 17, HL).2 As to when apprehended immediate force is lawful see paras 20–22, 115 ante, 161 post.3 Fagan v Metropolitan Police Comr [1969] 1 QB 439, 52 Cr App Rep 700, DC; R v Venna [1976] QB 421, [1975] 3 All ER 788, CA; R v Kimber[1983] 3 All ER 316, 77 Cr App Rep 225, CA; R v Savage, R v Parmenter [1992] 1 AC 699, 94 Cr App Rep 193, HL; R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL. As to whether assault requires a hostile intent see note 8 infra.4 R v Constanza [1997] 2 Cr App Rep 492, CA; R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL. Even silence can suffice if it has the necessary result, as it can in the case of a 'silent telephone call': R v Ireland, R v Burstow supra at 165–167, 191–195 per Lord Hope of Craighead.5 R v Constanza [1997] 2 Cr App Rep 492, CA. See also Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App Rep 234, DC;Logdon v DPP [1976] Crim LR 121, DC; R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL.6 As to whether a battery can be committed by an indirect application of force see DPP v K (A Minor) [1990] 1 All ER 331, 91 Cr App Rep 23, DC; R v Clarence (1888) 22 QBD 23 at 36–37, CCR, per Wills J, and at 41 per Stephen J. These cases provide authority that it can. Contrast R v Clarencesupra at 46–55 per Hawkins J (dissenting); Metropolitan Police Comr v Wilson, R v Jenkins [1984] AC 242 at 259–261, 77 Cr App Rep 319 at 326–327, HL, per Lord Roskill. See also Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890, [2000] 2 Cr App Rep 339, DC, where it was stated that there can be a battery by an indirect application of force (although in reality there had been a direct application of force on the facts).7 Under certain circumstances it may be a defence that the defendant was using only such force as was necessary to serve civil process: seeHarrison v Hodgson (1830) 10 B & C 445. Serving process by thrusting a document into the fold of a man's coat is not necessarily a battery: see Rose v Kempthorne (1910) 103 LT 730.8 Fagan v Metropolitan Police Comr [1969] 1 QB 439, 52 Cr App Rep 700, DC; R v Venna [1976] QB 421, [1975] 3 All ER 788, CA; R v Kimber[1983] 3 All ER 316, 77 Cr App Rep 225, CA; R v Savage, R v Parmenter [1992] 1 AC 699, 94 Cr App Rep 193, HL; R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL. See also R v Gladstone Williams [1987] 3 All ER 411, 78 Cr App Rep 276, CA. Quaere, however, whether battery implies a 'hostile' touching: see Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 73, sub nom F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 at 563–564, HL, per Lord Goff of Chieveley (disapproving dicta to that effect in Wilson v Pringle [1987] QB 237, [1986] 2 All ER 440, CA).9 1 Hawk PC c 15(2) ss 1, 2; Bl 4 Commentaries (18th Edn) 217, referring to 3 Commentaries (18th Edn) 120; Cole v Turner (1704) 6 Mod Rep 149; Collins v Wilcock [1984] 3 All ER 374, [1984] 1 WLR 1172, DC.10 R v Thomas (1985) 81 Cr App Rep 331 at 334, CA.11 R v Ireland, R v Burstow [1998] AC 147, [1998] 1 Cr App Rep 177, HL.12 R v Sherriff [1969] Crim LR 260, CA.13 See eg R v Rolfe (1952) 36 Cr App Rep 4, CCA; DPP v Taylor, DPP v Little [1992] QB 645, 95 Cr App Rep 28, DC.14 Fagan v Metropolitan Police Comr [1969] 1 QB 439 at 444, 52 Cr App Rep 700 at 703, DC, per James J.

In this paragraph the term 'assault' is used in its strict sense (see the text and notes 1–3 supra); except where the context otherwise requires, the term is used elsewhere in this title to mean assault and battery (see eg para 148 et seq post).

15 DPP v Taylor, DPP v Little [1992] QB 645, 95 Cr App Rep 28, DC.

Research 2

The Approval of Enforcement Agencies Regulations 2000

2.—(1) These Regulations shall have effect for the purposes of the approval by a magistrates' courts committee (“the committee”) of any person or body (“the agency”) for the purpose of executing warrants pursuant to section 125B of the Magistrates' Courts Act 1980(1).

(2) Any reference in these Regulations to the justices' chief executive means—

(a)the justices' chief executive for the committee, or

(b)any member of the staff of the committee whom he may authorise to exercise his functions under these Regulations, when acting within the scope of that authority.

Conditions to be satisfied by agency

4.—(1) The conditions in the following paragraphs of this regulation must be satisfied by the agency.

(2) The agency and the committee must have entered into a contract complying with the requirements of regulation 6.

(3) The committee must be satisfied that the agency has in place procedures for producing annual accounts that will satisfy professional standards of accounting practice and the requirements of—

(a)the Companies Acts, if the agency is a company; and

(b)the Taxes Acts, in any event.

(4) The committee must be satisfied that the agency has in place adequate systems for training its staff in the law and practice relating to—

(a)the enforcement of warrants;

(b)human rights; and

(c)health and safety.

(5) The committee must be satisfied that the agency has in place adequate systems for assessing the risks to individuals arising from the enforcement of warrants.

(6) The committee must be satisfied that the agency has an adequate system for dealing with complaints and for co-operating with any complaints procedure maintained by the committee.

(7) The agency must provide security to the committee in respect of any loss arising from the committee’s use of the agency’s services, in an amount to be determined by the committee but not less than £10,000.

(8) The agency must have professional indemnity insurance in an amount and on terms approved by the committee.

(9) The agency must maintain a separate account for money collected by it on behalf of the committee or of any magistrates' court within the area of the committee; and if it is approved by more than one committee it must maintain records showing what sums in that account are held in connection with the agency’s work for each committee.

(10) The committee must be satisfied that the agency has in place adequate systems for ensuring that it can satisfy its liabilities to the committee in the event of a failure of the agency’s business.

Conditions to be satisfied by individuals

5.—(1) The conditions in the following paragraphs of this regulation must be satisfied—

(a)where the agency is an individual, by that individual;

(b)where the agency is a company, by each director of the company;

(c)where the agency is a partnership, by each partner; and

(d)in any case, by each individual whom the agency proposes to authorise to execute warrants.

(2) None of the individuals referred to in paragraph (1) above must have been convicted of any criminal offence punishable by imprisonment or involving dishonesty or violence.

(3) None of those individuals must be under any liability in respect of overdue fines or court judgments.

(4) None of those individuals must be an undischarged bankrupt.

(5) None of those individuals must carry on or be associated with any business consisting of or including buying or trading in debt.

10.2) Every certificate of approval issued under paragraph (1)(b) above shall be issued subject to the condition that, should approval be revoked, the agency shall—

(a)immediately return the certificate to the committee, and

(b)satisfy the committee that all copies of that certificate have been destroyed or defaced in such a way as to show that the certificate is no longer in force.

Contracts

6.—(1) This regulation applies to a contract between a committee and an agency under which the agency is to execute warrants issued by magistrates' courts within the area of the committee.

(2) The contract shall—

(a)contain a service specification, covering the type and volume of work to be done by the agency, the standards of service required and the standards of conduct required of the agency’s staff; and

(b)provide for the committee to monitor the agency’s compliance with that specification.

(3) The contract shall specify a fixed term not exceeding three years, but may make provision for the term to be extended for a period during which tenders for a new contract are invited.

(4) The contract shall require the agency to allow regular inspection of client accounts—

(a)by the committee,

(b)by individuals authorised by the committee, or

(c)by or on behalf of the Lord Chancellor.

(5) The contract shall provide for the prompt payment by the agency to the committee of money collected by the agency on behalf of the committee or of any magistrates' court within the area of that committee.

(6) The contract shall specify the circumstances in which the committee would be entitled to call upon the bank bond or other form of security provided by the agency, including provision for the committee to retain the bond or security for up to six months after the expiry or sooner determination of the contract.

(7) The contract shall be expressed to terminate immediately upon the committee revoking the approval of the agency for whatever reason, and make provision for arrangements consequential upon such termination, including but not limited to arrangements for payment of monies to the committee and arrangements concerning unexecuted warrants.

(8) The contract shall require the agency to provide the committee with a list of all other committees by which it has been approved, and to notify the committee of any new approval or revocation of approval by another committee.

(9) The contract shall provide for the remuneration of the agency, and in particular for the level of fees which the agency may charge when executing distress warrants.

(10) The contract shall require the committee and the agency to comply with the provisions concerning the authorisation of individuals to execute warrants set out in regulation 11 below.

(11) The contract shall specify procedures for dealing with complaints and require the committee to publicise those procedures.

(12) The contract shall require the agency to supply every person against whom a warrant is executed with information in writing on the following—

(a)the purpose of the visit by the individual executing the warrant;

(b)the powers vested in the agency;

(c)how the sum (if any) in respect of which the warrant was issued may be paid;

(d)where advice about the effect of the warrant and related matters may be obtained;

(e)the charges that may be made in respect of the enforcement of the warrant; and

(f)the complaints procedures operated by the agency and the committee.

(13) The contract shall require the agency to inform the committee of any change occurring subsequent to the approval of the agency in relation to any of the matters set out in regulations 4, 5 and 8.

(14) The contract shall permit the committee temporarily to withdraw the agency’s authority to execute warrants, or to place restrictions on that authority, pending notice of a proposal to revoke their approval under regulation 12(4) below.