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  • Rai Gill

Common Assault v Assault by Beating

Updated: Jan 26

Assault is an everyday term we commonly use to describe any attack made by one person against another. But, in law, “assault” as a single word refers to one particular offence – common assault. Whereas “assault by beating” is an offence which builds on the concept of assault but requires a physical element.


Common Assault


Common assault is essentially a form of threat, and is an offence by virtue of section 39 of the Criminal Justice Act 1988. It is defined at common law as:


  • Any act by which a person intentionally, or recklessly, causes another to apprehend immediate unlawful violence.


This definition can be broken down into the following essential elements:


  1. Act – an actual, positive action must have taken place, and not merely an omission (e.g. failing to act or not acting); this can also include spoken words;

  2. Intentionally – the act must have been committed on purpose; OR

  3. Recklessly – the defendant knew there was the possibility that their act could cause another to apprehend violence, but they took the risk and acted anyway;

  4. Apprehend – this is subjective; whether the complainant actually thought there would be violence, rather than what the defendant intended;

  5. Immediate […] violence – that the defendant was about to use physical force against the complainant themselves;

  6. Unlawful – that there is no legal defence or reason for the action (e.g. self-defence).


The maximum sentence for common assault is either an unlimited fine, or six months in prison, or both.


An example of common assault is where one person shouts aggressively at another causing that person to fear violence.


Assault by Beating


Section 39 of the CJA 1988 also makes provision for another offence: battery. Battery is also known as, and is interchangeable with, “assault by beating” (battery literally meaning “a strike/hit”). In essence, therefore, an assault by beating is a combination of a threat made with a physical hit or strike.


Common law defines assault by beating as:


  • An act by which a person intentionally or recklessly applies unlawful force to the complainant (victim).


As with common assault, this definition can be split into five elements:


  1. Act – an actual, positive action;

  2. Intentionally – a purposeful act; OR

  3. Recklessly – taking the risk to make an act which had the possibility of causing the application of unlawful force;

  4. Applied – that some violence (force) is caused to the complainant either directly (e.g. a body part) or indirectly (e.g. a weapon/instrument).

  5. Force – this can be anything from the slightest touch (e.g. tapping or spitting at the complainant) to any force short of causing actual bodily harm;

  6. Unlawful – that there is no legal defence or reason for the action (e.g. self-defence).


As with common assault, battery has a maximum sentence of either an unlimited fine, or six months in prison, or both.


Examples of assault by beating are: push, punch, throwing a mobile phone at someone and it making physical contact with them.


Defences


Common assault and assault by beating can be very complex offences, and heavily fact-based. As a result, there is a lot of case law (legal precedents) regarding procedure and the application of facts to the elements of the each offence.


It is therefore essential to seek legal advice if you have been charged with or are under investigation for either offence. Lawyers can assist in applying the relevant legal principles to the facts of your case.


In general, however, legal defences can include:


  • Consent/applied consent (provided the injury sustained is not actual bodily harm or more severe);

  • Self-defence;

  • Prevention of a crime; and

  • Defence of property.


Court


Common assault is a summary only offence. This means that the offence will be prosecuted and the case heard in the Magistrates’ Court. Judgement will be made by either a lay bench of (usually) three Magistrates advised by a legal clerk, or by a district Judge sitting alone.


Exceptionally, a charge of common assault can be laid on an indictment and be tried in the Crown Court. This usually occurs where there are other offences being charged which need to be tried in the Crown Court and the common assault is joined to the case as the offence arises from the same facts as the other offences.


Sentencing


In passing sentence, a Judge will consider the facts of the case and apply them to the Sentencing Council’s guidelines for common assault, which can be found here.


The guidelines provide a sentencing range within which the Judge will pass sentence. This range will be based on the defendant’s culpability (i.e. the intention and fault behind the act) and the harm caused.


Generally, only in cases where there is high culpability and more than minor injuries caused will the sentence be custodial. The general sentencing range is a discharge to 26 weeks’ imprisonment.


There are many factors that can be taken into consideration by a Judge when passing sentence, including: the specific facts and circumstances of the offence; whether any other offences were committed; previous convictions; any aggravating factors; any mitigating factors (including personal mitigation); and whether the defendant pleaded guilty.


Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.


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