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.
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