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.

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.

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.

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 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.

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.

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.

In Scotland and Wales it is always unlawful to use any form of physical punishment against a child. The law in Scotland changed from 7^th 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.

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.

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.

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.

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.

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.

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.

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.

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.