Common assault

Common assault was an offence under the common law of England, and has been held now to be a statutory offence in the United Kingdom of Great Britain and Northern Ireland. It is committed by a person who causes another person to apprehend the immediate use of unlawful violence by the defendant. It was thought to include battery. In England and Wales, the penalty and mode of trial for this offence is now provided section 39 of the Criminal Justice Act 1988, and it has been held that the offence should be alleged as contrary to the statute because of this. It was also held that common assault and battery are two distinct offences, so that a charge that the accused "assaulted and battered" another person would be bad for duplicity (the rule against charging more than one offence in a single count).

Section 39 of the Criminal Justice Act 1988 provides:

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

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 they perform an act (which does not for this purpose include a mere omission to act) by which they intentionally or recklessly causes another person to apprehend immediate unlawful violence.

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 though the victim may have a phobia although, if the defendant is aware of the psychological difficulty, 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 he would beat the living daylights out of you but for the presence of a police officer watching them both, 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.

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