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.