Section 39 of the Criminal Justice Act 1988 does not contain a definition of the expression "common assault" that appears there. What the offence actually consists of must be determined by reference to
case law. A person commits an assault if he performs an act (which does not for this purpose include a mere omission to act) by which he intentionally or recklessly causes another person to apprehend immediate unlawful violence.
Actus reus Both in the
common law and under
statute, the
actus reus of a common assault is committed when one person causes another to apprehend or fear that
force is about to be used to cause some degree of personal contact and possible injury. There must be some quality of reasonableness to the apprehension on the part of the victim. If the physical contact is everyday social behaviour such as a handshake or friendly pat on the back, this is acceptable, even in situations where the victim may have a
phobia, however if the defendant is aware of the victim's fears and carries out the action anyway, this may be converted into an assault if the intention is to exploit the condition and embarrass the victim. More generally, if the defendant threatens injury tomorrow, the victim has the opportunity to take avoiding action. Thus, what is threatened must be capable of being carried out immediately. This would exclude a conditional threat. For example, if the defendant says that they "would beat the living daylights out of you if not for the presence of a police officer", the victim is supposed to understand that there is no immediate danger (
cf. Tuberville v Savage's "If it were not assize time I would not take such language from you"). But inequality in size can be disregarded so if a very small person threatens a very large person and it is obvious that the risk of any real injury from this attack is remote, the large person may nevertheless feel some degree of apprehension. Normally, both the one making the threat and the victim must be physically present because, otherwise, there would be no immediate danger. However, if a
mobile phone is used to transmit the threat (whether orally or by
SMS) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault. In
Fagan v Metropolitan Police Commissioner a police officer ordered the defendant to park his car and he reluctantly complied. In doing so, he accidentally drove the car on to the policeman's foot and, when asked to remove the car, said "Fuck you, you can wait" and turned off the ignition. Because of the
steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault. Albeit accidentally, the driver had caused his car to rest on the officer's foot. This
actus reus was a continuing act and the
mens rea was formed during the relevant time (see
concurrence). Whether realistically or not, the officer apprehended the possibility of injury so the offence was complete. In
R v Ireland, it was found that causing a person to apprehend violence can be committed by way of action or words.
Words can also mean that otherwise threatening actions are rendered not capable of being an assault, as in the case of
Tuberville v Savage. In that case, the plaintiff told the defendant (while putting his hand on his sword) that he would
not stab him, because the circuit judge was visiting town for the local assizes. On that basis, the defendant was deemed to have known that he was not about to be injured, and it was held that no assault had been committed by the plaintiff (which would otherwise have justified the defendant's allegedly pre-emptive strike). The "immediacy" requirement has been the subject of some debate. The leading case, again, is
R v Ireland. Therein, the House of Lords held that the making of silent telephone calls could amount to an assault if it caused the victim to believe that physical violence might be used against him in the immediate future. One example of "immediacy" adopted by the House in that case was that a man who said, "I will be at your door in a minute or two", might (in the circumstances where those words amounted to a threat) be guilty of an assault. See also
R v Constanza.
Mens rea The
mens rea is that this fear must have been caused either
intentionally or
recklessly. A battery is committed when the threatened force actually results in contact to the other and that contact was caused either intentionally or recklessly.
Defences Self-defence is available when reasonable force is used to prevent harm to self or another. Prevention of a greater crime or with the purpose of aiding a lawful arrest is also known as the
public defence. The
private defence or defence of property also may be used as an argument. These arguments are not strictly defences but justifications for a certain level of force. Consent also negates assault (but not more serious offences, per
R v Brown). Ordinary, harmless contact is considered of the sort one might encounter while travelling on a busy bus or train or trying to get to the bar in a packed pub is not considered assault, nor are genuine tackles in contact sports like football or rugby. Preventing someone accidentally endangering themselves would also generally not amount to assault. ==Alternative verdict==