There are four main categories of assault offences, excluding the most serious of violence related offences: murder and manslaughter. These are:

  • common assault and battery
  • assault occasioning actual bodily harm (ABH)
  • unlawful wounding or inflicting grievous bodily harm (GBH)
  • Wounding or causing grievous bodily harm (GBH) with intent.

In this article we will look at the offences of common assault, and also battery, the lowest level forms of assault.

Is common assault the same as battery?

Common assault is not the same battery, but is similar. Common assault and battery are actually two separate offences that are punishable under s.39 of the Criminal Justice Act 1988.

An “assault” is conduct which, either intentionally or recklessly, causes another person to fear immediate and unlawful violence. The assault also becomes a “battery” when the accused also intentionally or recklessly applies unlawful force to the complainant.

Does common assault include battery?

So, an assault can be, for example, simply shouting loudly at a person that you will hit them, a battery occurs when a person is actually hit.

The force used can be minimal and does not require the complainant to suffer any injury. Typically, battery injuries will be very minor, such as grazing or mild redding/bruising – if there is more serious bruising or cutting, the police will typically prefer an ABH charge. Any unlawful violence however slight means the offence is complete if the other ingredients are present. A “hostile intent” is required to commit the offence.

Is common assault worse than battery?

Common Assault is not worse than battery, common assault is in fact a less serious offence than battery. Confusingly the police will often issue police cautions for “common assault” when actually they mean “battery”. Where the facts also allege a physical application of force, even if the charge is listed as “common assault”, the Court has determined that a charge of common assault is simply a general description which incorporates the more specific battery, or “assault by beating”.

Further confusing the matter is when a “battery” case is charged, it will usually be listed as a “assault by beating”.

The main point to remember when considering a common assault/battery case is if there is no actual application of force, it is a simple “assault” or “common assault” case, which is generally considered to be the lowest level of assault. If there is an application of force, then it will be a battery – which is usually referred to as an “assault by beating”, which is the slightly more serious form of assault.

Common Assault and Battery and Recklessness

Common assault and battery can be committed recklessly. A reckless assault requires the foresight of the apprehension that immediate and unlawful violence may be used, and the defendant taking the risk. This means that an accused has to act in a certain way, that although they may not have deliberately intended to cause fear to the other person, they were aware that their actions might cause a fear.

A reckless battery requires the foresight of the possibility that a complainant will be subjected to immediate and unlawful violence. This means the accused may not have deliberately applied force to the complainant, but they must have been aware that by their actions there was a possibility that the complainant would be subject to some physical violence. The violence does not need to be significant, and can be minor, but as soon as the accused takes on the risk, and causes the application of force, a battery is made out.

Hostile Intent and Assault and Battery

There needs to be some “hostile intent” to the physical contact, so if someone bumps into another person while on the train or walking down the road, this will not be an assault, as there is no hostile intent. Everyday touching, knocking or bumping against somebody, or touching them to get their attention are considered acceptable standards of conduct.

What are the points to prove for battery?

The points to prove for battery, in order that the police or CPS can prove their case, is that there must be an intentional or reckless application of force.

A battery can be committed if the accused uses an implement or weapon to strike the complainant. Also, the use of unlawful violence, however slight, can still amount to battery, but as already mentioned, the law protects people within the bounds of general acceptable standards of behaviour.

Whether touching becomes an assault is a question of fact. Deliberate and persistent touching can become an assault if it goes beyond what is considered a generally acceptable level of conduct.

What is the difference between battery and ABH?

The difference between battery and ABH is essentially that the level of injury for ABH is more serious than for battery. Often the issue in a battery case is whether the injuries that have been sustained should be considered an ABH, or just a battery. An ABH charge carries much more serious implications, including a permanently disclosable record on a standard and enhanced DBS certificate. Those being offered a police caution for ABH should therefore be very careful before accepting it, and should always try to negotiate the lesser charge of battery if possible.

The CPS states that unless there are aggravating features, a battery should be preferred where injuries amount to no more than: grazes; scratches; abrasions; minor bruising; swellings; reddening of the skin; or superficial cuts. If there are repeated assaults, punching, kicking, or headbutting (as opposed to pushing and slapping), and/or where a weapon is used, or there is a vulnerable victim, then an ABH charge would typically be the outcome, provided that the injuries are more significant, such as more than minor bruising, or more than superficial cuts.

Points to Prove and Common Assault

With a common assault, even if the accused swings at the complainant but misses, an assault can still be committed – as they would have placed the complainant in fear of immediate unlawful violence. An assault can be committed by words alone if the complainant fears that violence will be used against them.

Will I go to jail for common assault?

For a first-time low-level incident of common assault or battery, this will not typically result in a prison sentence.

In most cases of assault, both common assault and also battery, for a first-time arrestee, where the harm is minimal and the arrestee has never been in trouble before, the police will often issue a police caution.

Can you get a caution for battery or assault?

Yes, you can get a caution for common assault or battery (assault by beating), it is in fact a usual occurrence for the police to issue a caution for common assault or battery.

For details about police cautions, and their impact, see here – we have helped many clients have assault police cautions deleted.

What is the penalty for assault and battery in the UK?

The maximum prison sentence for a non-aggravated common assault or battery is 6 months imprisonment, and/or an unlimited fine.

In practice on conviction at court for common assault or battery, the sentence will often be a conditional discharge and/or a fine, or a lower level prison sentence or community order, which will often be suspended.

If the facts are a bit more serious, or aggravated, then a prison sentence may become a possibility.

When determining the most appropriate sentence for common assault and battery the court has to establish what category of seriousness the offence belongs to.

In order to determine the category, the court must assess the culpability and harm. There are three categories of harm.

  • Category 1: Offences causing more than minor physical or psychological harm/distress.
  • Category 2: Offences causing minor physical or psychological harm/distress.
  • Category 3: Where no, or a very low level, of physical harm and/or distress was caused.

In assessing the level of harm the 2021 Sentencing Guidelines say the following factors should be given consideration:

  • the number of injuries;
  • the severity of injury and pain suffered;
  • the duration or longevity of any psychological harm or distress caused.

Culpability is categorised as:

  • A – High culpability;
  • or B – Lesser culpability.

Factors under High Culpability include:

  • Intention to cause fear of serious harm, including disease transmission
  • Victim obviously vulnerable due to age, personal characteristics or circumstances
  • Prolonged/ persistent assault
  • Use of substantial force
  • Strangulation/ suffocation/ asphyxiation
  • Threatened or actual use of weapon or weapon equivalent
  • Leading role in group activity

Factors indicating Lesser Culpability include:

  • Lesser role in group activity
  • Mental disorder or learning disability, where linked to the commission of the offence
  • Excessive self defence
  • All other cases not captured by category A factors

The Sentencing Guidelines say that the level of culpability is determined by weighing all the factors of the case, and where there are characteristics which fall under different levels of culpability, the court should balance these to reach a fair assessment of the offender’s culpability.

The court will then need to determine the category level of harm, 1, 2 or 3 and then determine where there culpability is lesser or higher. The Guidelines provides “starting point” sentences, that can be reduced or increased depending on the circumstances. The lowest level starting point for offences with the lowest levels of harm and culpability is a fine, with a range of sentence from a discharge up to a low-level community order. A starting point sentence for the highest levels of harm and culpability is a high-level community order, with a range of sentence from a low-level community order up to 26 weeks in prison.

Factors that might make it more likely that you would receive a prison sentence for assault or common assault are the following:

  • Deliberate spitting or coughing
  • Biting
  • Offence committed against those working in the public sector or providing a service to the public or against a person coming to the assistance of an emergency worker
  • Offence committed in prison
  • Presence of children
  • Offence committed in a domestic context
  • Gratuitous degradation of victim
  • Abuse of power and/or position of trust
  • Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution
  • Commission of offence whilst under the influence of alcohol/drugs
  • Offence committed whilst on licence or subject to post sentence supervision
  • Failure to comply with current court orders

Factors that will likely reduce a sentence are the following:

  • No previous convictions or no relevant/recent convictions
  • Remorse
  • Good character and/or exemplary conduct
  • Significant degree of provocation
  • Age and/or lack of maturity
  • Mental disorder or learning disability, where not linked to the commission of the offence
  • Sole or primary carer for dependent relative(s)
  • Determination and/or demonstration of steps taken to address addiction or offending behaviour
  • Serious medical conditions requiring urgent, intensive or long-term treatment

What are the aggravated forms of Common Assault and Battery?

There are two forms of aggravated Common Assault and Battery. If the offence is racially or religiously aggravated, then the maximum sentence is increased to two years’ imprisonment under section 29 of the Crime and Disorder Act 1998.

If the assault is committed against an emergency worker, there is a maximum sentence of one year’s imprisonment under section 1 of the Assaults on Emergency Workers (Offences) Act 2018.

In addition to these two aggravated forms of common assault and battery, since 28th June 2022 where an offence of common assault or battery is committed against a person providing a public service, performing a public duty or providing services to the public, a court must treat that as an aggravating factor when it comes to sentencing. Other statutory aggravating features will be having a previous similar conviction, committing an offence while on bail, and if the offence was motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: disability, sexual orientation or transgender identity.

Is smacking a child common assault?

In England a parent or guardian will not be guilty of assault or battery if the force used against a child amounts to no more than that required for the lawful chastisement of a child. What is “reasonable chastisement” will depend on the circumstances and the defence of lawful chastisement is not available for offences of ABH, maliciously wounding or inflicting bodily harm, or maliciously wounding or inflicting bodily harm with intent.

Can you smack a child in Scotland or Wales?

In Scotland and Wales it is always unlawful to use any form of physical punishment against a child. The law in Scotland changed from 7th November 2020 under the Children (Equal Protection from Assault) (Scotland) Act 2019. The Act removed the defence of reasonable chastisement for common assault and battery. Under the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 all types of physical punishment, such as smacking, hitting, slapping and shaking, were made illegal from 21 March 2022.

Does self-defence count as assault?

Defending your property or self-defence provides a defence to assault and battery, so long as the use of force used was reasonable in the circumstances. Excessive use of force will amount to a battery.

Can you assault a trespasser?

Reasonable force may be used in defence of property, which includes an entitlement to prevent a trespasser from entering, but the owner of the property must first request the trespasser to leave, before using only as much force as is necessary to remove the trespasser.

There is no specific definition of ‘reasonable force’ – it will depend on the circumstances. If you exceed what is reasonable, for example you disproportionately and excessively injure a trespasser, you may still be arrested, cautioned or charged with battery, or a more serious offence, depending on the injuries.

In the circumstances where you are defending your home from intruders, namely burglars, the law does permit the use of disproportionate force.  If you are acting in extreme circumstances in the heat of the moment and don’t have a chance to think about exactly how much force would be necessary to repel an intruder, a certain level of force might seem reasonable to you at the time, but with hindsight, your actions may seem disproportionate. The law will give you the benefit of the doubt in these circumstances. This only applies if you are acting in self-defence or to protect others in your home – disproportionate force to protect property is still unlawful. Also, if your actions are so violent and excessive, this might amount to “grossly disproportionate force” for which the law does not protect you. For example if after subduing an intruder, you continue to egregiously beat an intruder, this may be seen as being grossly disproportionate.

Consent and Common Assault and Battery

The police and CPS need to prove that an offence of common assault or battery was committed without the consent of the complainant. If you are interviewed by the police in relation to an allegation of common assault or battery, the police will typically ask a suspect whether they had permission to assault the complainant. This might seem like an odd question to ask, but if there is express or implied consent, for example in the course of playing a game, or general day to day accepted activity, then consent will provide a valid defence to a charge of common assault or battery.

Where actual or grievous bodily harm or a wound is caused, consent will be no defence, in the absence of a good reason. Sadomasochistic practices resulting in GBH/wounding have been found to be unlawful, but a husband branding his wife with his initials with a hot knife, at her instigation, was not unlawful and the consent by the wife provided the husband with a defence. The court found there was no “aggressive intent”, and that it was not in the public interest that such consensual activity between husband and wife in private should be made the subject of a criminal prosecution. It will however still depend on the extent of the contact, and anything “more than” trivial may be subject to prosecution. Since 29 April 2021, section 71 of the Domestic Abuse Act 2021 expressly removes the defence for infliction of actual bodily harm (ABH) or grievous bodily harm (GBH)/wounding where the victim consented to the infliction of the harm for the purposes of obtaining sexual gratification (except where the harm is the infection of the victim with a sexually transmitted infection in the course of sexual activity, and the victim consented to the sexual activity in the knowledge or belief that the defendant had the sexually transmitted infection).

Consent may arise as an issue in the course of a sports game, whether a battery has occurred will dependent on the facts. Generally were injuries are sustained while playing a sport,  criminal proceedings will not be issued, unless there has been conduct that amounts to a sufficiently grave diversion from the rules of the game. If what occurs goes beyond what a player can reasonably be regarded as having accepted by taking part in the sport, this will indicate that the conduct will not be covered by the defence of consent. For example, where a player in a game of football deliberately stamps on another player’s leg, outside of the flow of the game, breaking it, this would not be considered to be in keeping with the rules, and would result in prosecution.

Will I get a caution for common assault?

The police will frequently look to quickly resolve a low-level common assault or battery allegation with a simple or conditional caution.

In order to receive a caution, a suspect must first admit to an allegation. If it is decided the public interest does not require prosecution, after consulting with the victim, the police will issue the caution.

The police will need to explain the implications of the caution to the accused. The suspect will need to sign a form that will briefly describe the assault, and will contain details about the consequences of the caution.

How long does a caution for common assault last?

A caution for common assault or battery will be retained on the Police National Computer (PNC) until the individual reaches 100 years of age, unless it is deleted.

Does a caution for common assault show on DBS?

Although the caution will be retained by the police, it will not be disclosed on a DBS check forever. For a basic DBS check, a simple caution will be “spent” immediately, a conditional caution will become spent after a maximum of three months.

For a standard and enhanced DBS check, a caution for common assault or battery (assault by beating) will show up automatically for 6 years, after which it will become “protected”. After 6 years the caution can still show up on an enhanced DBS check on a discretionary basis, as “relevant information”, but this disclosure is appealable.

Does a caution for common assault show on an ACRO Police Certificate?

A caution for common assault or battery will show on an ACRO Police Certificate for 5 years, after which point it will be “stepped down”. Once stepped down, providing the person has no other record, the Police Certificate will thereafter state “No Live Trace”. For details about the impact of a “No Live Trace” record, please see our article: ACRO Police Certificate and No Live Trace.

Expert Criminal Records Solicitor

If you have been issued with a caution, or are waiting to receive a caution for common assault or battery, then please get in touch.

We have helped hundreds of clients in the past to get records removed from the PNC, including many records for common assault, assault by beating, ABH and even GBH.

We will provide you with a frank and honest assessment of your case during an initial assessment, and we charge reasonable fixed fees for all our services.

Please get in touch to discuss your case.