Common Assault – Assault (OCR A-Level Law): Revision Notes
Common Assault – Assault
What is assault?
Assault is a common law offence that students often misunderstand. In everyday language, people use the word "assault" to describe a physical attack, but in criminal law, assault refers to something different. Assault is about threatening force, not actually using it. The physical application of force is a separate offence called battery.
The key distinction in criminal law is that assault involves causing apprehension of violence, while battery involves the actual application of force. This differs from everyday usage where "assault" often refers to physical contact.
The legal definition comes from the case of Fagan v Metropolitan Police Commissioner (1969), which established that assault occurs when a defendant intentionally or recklessly causes another person to apprehend immediate unlawful personal violence.
This offence is classified as a summary offence under section 39 of the Criminal Justice Act 1988, meaning it can only be tried in the Magistrates' Court. The maximum sentence available is six months' imprisonment.
Actus reus of assault
For the actus reus of assault to be established, the prosecution must prove that the victim apprehended immediate unlawful personal violence. This requirement has several distinct components that must all be satisfied.
Apprehend
The term apprehend means that the victim must be aware that they are about to be subjected to violence. Importantly, the victim does not need to be frightened or afraid—they simply need to anticipate that unlawful force is coming. If the victim does not anticipate any violence, then no assault has occurred.
Worked Example: R v Lamb (1967)
Facts: Two friends were playing with a revolver. The defendant pointed the gun at the victim and pulled the trigger, believing the chamber would not fire because there was no bullet in the firing position. Tragically, the gun fired and killed the victim.
Legal Issue: Was there an assault?
Held: No assault – The court held that there was no assault because the victim, who was also unaware of the danger, did not apprehend any violence. He thought it was just a game.
Key Principle: Without apprehension of violence by the victim, there can be no assault, even if actual danger exists.
The apprehension does not need to arise from an actual intended threat. In Logdon v DPP (1976), the defendant showed the victim a fake gun in a drawer to frighten her. Although the gun was an imitation, the victim believed it was real and apprehended violence. The court confirmed that an assault had been committed because what matters is the victim's perception, not whether the defendant could actually carry out the threat.
Critical Point: An assault can be committed even with an imitation weapon. The test is whether the victim genuinely believed they were about to experience violence, not whether the defendant had the means to carry it out.
The conduct that causes the victim to apprehend violence can take various forms—it can be through actions, words, or even silence. This was established in R v Constanza (1997) and R v Ireland (1997). In Ireland, the defendant made silent phone calls to three women, causing them to fear violence. The Court of Appeal held that silence could constitute an assault if it caused the victim to apprehend immediate violence.
However, words can also negate an assault. The old case of Tuberville v Savage (1669) demonstrates this principle. The defendant placed his hand on his sword and said, "If it were not assize time, I would not take such language from you." The court held that his words negated any assault because he was indicating that he would not use violence due to the judges being in town.
Immediate
The requirement of immediacy has been interpreted broadly by the courts. The victim must apprehend violence in the immediate future, but this does not mean instantaneous. The test is whether the victim did not know what the defendant was going to do next.
Worked Example: Smith v Chief Constable of Woking Police Station (1983)
Facts: The defendant was looking through the victim's bedroom window late at night. The victim was terrified and apprehended violence.
Legal Issue: Could there be an assault when the defendant was outside and the victim was inside, separated by a physical barrier?
Held: Assault committed – The court held that an assault had been committed because the victim did not know what the defendant would do next, even though he was outside the house.
Key Principle: "Immediate" does not mean instantaneous. It means the victim does not know what will happen next and fears violence in the immediate future.
The broad interpretation of "immediate" means that assault can occur even when there are physical barriers or some distance between the victim and defendant, as long as the victim genuinely fears violence in the immediate future.
Unlawful
The term unlawful refers to the absence of legal justification for the conduct. An assault is only unlawful if there is no valid defence available to the defendant. For instance, if someone uses reasonable force in self-defence, their actions would be lawful rather than unlawful. The presence of a defence such as self-defence, defence of another, or consent would make the violence lawful and therefore not constitute assault.
Personal violence
Personal violence means that the victim must apprehend force that amounts to at least a technical battery. In other words, the anticipated violence can be minimal—even the slightest touching would be sufficient. The victim does not need to fear serious harm; apprehension of any unwanted physical contact satisfies this requirement.
Mens rea of assault
The mens rea for assault requires either intention or recklessness regarding causing the victim to apprehend immediate unlawful personal violence. This was confirmed in R v Parmenter (1991).
Intention means that the defendant's aim or purpose was to cause the victim to apprehend immediate unlawful violence. The defendant must have this as their direct objective.
Recklessness requires that the defendant was aware of a risk that the victim would apprehend immediate unlawful violence but unreasonably took that risk anyway. The defendant must have subjectively recognised the risk—it is not enough that a reasonable person would have recognised it.
Critical Distinction: The mens rea relates to causing the apprehension of violence, not to carrying out the violence itself. The defendant must intend or be reckless as to whether the victim will fear immediate violence.
Key cases summary
Fagan v Metropolitan Police Commissioner (1969): Established the modern definition of assault as intentionally or recklessly causing the victim to apprehend immediate unlawful personal violence.
R v Lamb (1967): Demonstrated that there is no assault if the victim does not apprehend violence, even if they are in actual danger.
Logdon v DPP (1976): Confirmed that an assault can be committed even with an imitation weapon if the victim believes it is real.
R v Constanza (1997) and R v Ireland (1997): Established that assault can be committed through words, silence, or actions such as silent phone calls, as long as the victim apprehends immediate violence.
Tuberville v Savage (1669): Showed that words can negate what would otherwise be an assault.
Smith v Chief Constable of Woking Police Station (1983): Interpreted "immediate" broadly to include situations where the victim does not know what the defendant will do next.
R v Parmenter (1991): Confirmed that the mens rea for assault is intention or recklessness as to causing the victim to apprehend immediate unlawful violence.
Key Points to Remember:
-
Assault is about threats, not physical contact – it occurs when someone causes another person to apprehend immediate unlawful violence
-
The victim must actually anticipate violence – if they are unaware of any threat (as in R v Lamb), there is no assault
-
Assault can be committed through actions, words, or even silence – the method does not matter as long as the victim apprehends immediate violence
-
"Immediate" means the victim does not know what will happen next – it does not require instantaneous violence (Smith v Chief Constable of Woking)
-
The mens rea is intention or recklessness – the defendant must intend to cause apprehension or recognise the risk of causing it (R v Parmenter)
-
Maximum sentence is six months' imprisonment under section 39 of the Criminal Justice Act 1988