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Distinction between common law assault and battery


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#1 LLB1986

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Posted 19 February 2009 - 05:17 PM

Over the past couple of years, I have been observing the interpretation of the UK police force of the common law offence of assault under s39 of the Criminal Justice Act 1988. The obvious distinction between this offence and battery is the presence of contact in the latter and absence of contact in the former.

However, it is common to observe the UK police force confusing these two offences when arresting under suspicion. Many practices involve the suspect being arrested on suspicion of assault upon it being found that he/she has attacked the victim physically.

Whether or not this attack is serious (thus occasioning ABH or being GBH), physical contact is battery not assault.

For those not aware of the definition of common law assault, is it the victim apprehending or fearing immediate harm with the suspect being held to mens rea of either intention or recklessness.

I would like to ask fellow officers about their viewpoint on the application of common law assault in policing (particularly, the scope of application and variation between areas of the country).

I would also like to find out what officers think of this offence in comparison to s2 Public Order Act which tends to be substituted for s39 assault in many situations.

Being a law student, my contact with the Criminal law is very theoretical and I would appreciate inputs which highlight the actual guidelines provided to officers in applying these offences on the street.

Regards

Edited by LLB1986, 19 February 2009 - 05:21 PM.


#2 ChelseaBas

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Posted 19 February 2009 - 05:44 PM

Over the past couple of years, I have been observing the interpretation of the UK police force of the common law offence of assault under s39 of the Criminal Justice Act 1988. The obvious distinction between this offence and battery is the presence of contact in the latter and absence of contact in the former.

However, it is common to observe the UK police force confusing these two offences when arresting under suspicion. Many practices involve the suspect being arrested on suspicion of assault upon it being found that he/she has attacked the victim physically.

Whether or not this attack is serious (thus occasioning ABH or being GBH), physical contact is battery not assault.

For those not aware of the definition of common law assault, is it the victim apprehending or fearing immediate harm with the suspect being held to mens rea of either intention or recklessness.

I would like to ask fellow officers about their viewpoint on the application of common law assault in policing (particularly, the scope of application and variation between areas of the country).

I would also like to find out what officers think of this offence in comparison to s2 Public Order Act which tends to be substituted for s39 assault in many situations.

Being a law student, my contact with the Criminal law is very theoretical and I would appreciate inputs which highlight the actual guidelines provided to officers in applying these offences on the street.

Regards


To my mind (and from training) you arrest for assault (as it becomes assault and battery if contact is made, it certainly doesn't cease to be an assault). The reason we arrest for assault is that it can easily be graded by result: Common assault, Assault occasioning ABH or GBH etc. Battery does not allow this grading, it simply states that there was contact during an assault. This seems to be a very minor legal distinction that I've not heard of causing any problems for the officers or charging. If it was a problem to arrest for assault rather than battery I'm sure some smart legal briefs would be using it to get their clients off and we would change our training.

Section 2 POA is Violent Disorder, which I don't think I've ever seen arrested for! And certainly not as a replacement for Assault!

Also are you a law student or a special? Referring to people as "fellow officers" and then saying your contact with Criminal Law is very theoretical...

#3 LLB1986

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Posted 19 February 2009 - 05:46 PM

To my mind (and from training) you arrest for assault (as it becomes assault and battery if contact is made, it certainly doesn't cease to be an assault). The reason we arrest for assault is that it can easily be graded by result: Common assault, Assault occasioning ABH or GBH etc. Battery does not allow this grading, it simply states that there was contact during an assault. This seems to be a very minor legal distinction that I've not heard of causing any problems for the officers or charging. If it was a problem to arrest for assault rather than battery I'm sure some smart legal briefs would be using it to get their clients off and we would change our training.

Section 2 POA is Violent Disorder, which I don't think I've ever seen arrested for! And certainly not as a replacement for Assault!

Also are you a law student or a special? Referring to people as "fellow officers" and then saying your contact with Criminal Law is very theoretical...


Law student, me reference as fellow is for regard to the nature of our legal involvement. I will hopefully be pursuing a career in law very shortly. My kindest regards for your ernest answer.

#4 Akki

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Posted 19 February 2009 - 08:31 PM

Law student, me reference as fellow is for regard to the nature of our legal involvement. I will hopefully be pursuing a career in law very shortly. My kindest regards for your ernest answer.

The term 'common assault' can encompass both assault and battery. A battery is actually charged as 'assault by beating'.

You've encountered a s2 POA Violent Disorder being dealt with by way of s39 assault. How? They are very different offences. The level of severity is much higher in a violent disorder.

Law student, me reference as fellow is for regard to the nature of our legal involvement. I will hopefully be pursuing a career in law very shortly. My kindest regards for your ernest answer.

If you're not in the job they are not 'fellow officers' are they? Merely 'officers'.

#5 LLB1986

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Posted 19 February 2009 - 08:38 PM

The term 'common assault' can encompass both assault and battery. A battery is actually charged as 'assault by beating'.

You've encountered a s2 POA Violent Disorder being dealt with by way of s39 assault. How? They are very different offences. The level of severity is much higher in a violent disorder.


If you're not in the job they are not 'fellow officers' are they? Merely 'officers'.


If you wish to be pedantic about things like that I would suggest you are as pedantic about the competence of the police force you operate in. I was merely trying to be friendly as this was my first post. I would not like to be dealt with by someone like you. Thank you for your comments regarding my initial query. Ps, I have a contract lined up at a major city law firm!

Edited by LLB1986, 19 February 2009 - 08:39 PM.


#6 Akki

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Posted 19 February 2009 - 08:47 PM

If you wish to be pedantic about things like that I would suggest you are as pedantic about the competence of the police force you operate in. I was merely trying to be friendly as this was my first post. I would not like to be dealt with by someone like you. Thank you for your comments regarding my initial query. Ps, I have a contract lined up at a major city law firm!

I'm not a officer any more, so don't worry about that.

If you want to be a lawyer, pedantry is a good habit to get into.

BTW I did actually answer your question.

#7 Frag

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Posted 19 February 2009 - 08:56 PM

Doesn't matter a blind bit when arresting, as long as the charge is right as custody. People should understand why they are arrested. "You are under arrest on suspicion of hitting john smith yesterday" is equally if not more valid than "you are under arrest on suspicion of battery occuring 1pm on the 18th february 2008 on the aggrieved mr j smith"

#8 LLB1986

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Posted 19 February 2009 - 08:57 PM

I'm not a officer any more, so don't worry about that.

If you want to be a lawyer, pedantry is a good habit to get into.

BTW I did actually answer your question.


Never said you didn't hence the thank you. I am pedantic about the law, just not about insignificant things to the law. Regards

#9 Akki

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Posted 19 February 2009 - 08:59 PM

Never said you didn't hence the thank you. I am pedantic about the law, just not about insignificant things to the law. Regards

Putting that behind us, can you explain the violent disorder/s39 assault thing. I'm confused.

#10 LLB1986

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Posted 19 February 2009 - 09:18 PM

Putting that behind us, can you explain the violent disorder/s39 assault thing. I'm confused.


My sincerest of apologies I believe it is section 5 of POA but section 4 also. When I'm home I'll extract the relevant sections.

Edited by LLB1986, 19 February 2009 - 09:22 PM.


#11 Law_Grad

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Posted 19 February 2009 - 09:20 PM

@ LLB1986

I would say that you have your priorities about pedantry mixed up.


Because, although they can be mutually exclusive items, assault and battery often go together like hand & glove or salt & vinegar. And arresting someone on suspicion of assault, when in reality or to be pedantic it is actually a battery, isn’t going to create any great waves.


But by saying “fellow officers” upon a site that is aimed and targeted towards serving police officers, when you aren’t an actual serving police officer, could easily be construed as attempting to pass yourself off as a police officer, which is an offence in itself.


And no I am not a police officer, either past or present, and nor do I have a contract lined up at a major city law firm. In fact, I’m baffled as to what relevance that has on assault and or battery. :prone:

#12 MrGrumpy

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Posted 19 February 2009 - 11:01 PM

As long as the charging is correct, does it not matter. I don't specify what sort of assault to any PIC upon arrest as they don't know as much as me - am I a doctor or other qualified medical professional? Someone receives a blow to the head, calls police, arrest the offender sus common assault/abh as at the time thats what injuries he sustained, later victim gets admitted to hospital with bleed to brain and subsequently spends the rest of his life on artifical life support, PIC charged with more serious matter be it manslaughter or whatever.

What the CPS do at the end of the day depends on the current moon phase it appears. The word 'injury dependent' is banded about all over the place.

Job on my patch not too long ago; Domestic - Husband ties wife up and takes her out in the garden, pours petrol over her. Walks around her for some time lighting a cigarrette lighter, during this he does not say to her is going to kill her.

Charged common assault, she had no lasting injuries, no marks/burns from being tied up, no injuries from the petrol - whats he going to receive at court, probably not a lot and even then 6mths max sentence for common assault.

#13 LLB1986

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Posted 19 February 2009 - 11:39 PM

@ LLB1986

I would say that you have your priorities about pedantry mixed up.


Because, although they can be mutually exclusive items, assault and battery often go together like hand & glove or salt & vinegar. And arresting someone on suspicion of assault, when in reality or to be pedantic it is actually a battery, isn’t going to create any great waves.


But by saying “fellow officers” upon a site that is aimed and targeted towards serving police officers, when you aren’t an actual serving police officer, could easily be construed as attempting to pass yourself off as a police officer, which is an offence in itself.


And no I am not a police officer, either past or present, and nor do I have a contract lined up at a major city law firm. In fact, I’m baffled as to what relevance that has on assault and or battery. :prone:



Actually assault and battery are different things in common law. One involves physical contact, one does not. Whether you want to accept this distinction is up to you but that is the law. What I wanted to know was whether or not this distinction would make a difference in reality and why officers tend to ignore the distinction in reality. Many people have responded and I am extremely grateful for that :D

As to me passing myself off as a police officer lol...obviously you have not read the whole post. I am alarmed as to your lack of contextual analysis. I made quite clear that my understanding of the criminal law was very theoretical. There is the hint... your suggestion is laughable.

The relevance of my contract was to illustrate I will be practicing the law too and therefore add as some substance to the reason why I referred to the officers as 'fellow officers' - not because I am an officer myself, but because I consider all branches of the law to be an integral part of the system as a whole.

I hope this has cleared up the misunderstanding on your part. Once again, I thank everyone for their responses.

#14 anskas

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Posted 20 February 2009 - 01:41 PM

As I understand things, if I decide to punch someone in the street, I am possibly committing two separate offences. One is an 'offence against the person', whether it be assault, battery, ABH or GBH; and the other is a public order offence, in this case probably affray (S3 POA).

If I decide to attack someone in private, only the first offence will apply. If two of us are play-fighting in the street, there is only the wider 'public order offence' of potentially making people scared.

Please correct me if I am wrong.

#15 Cromwell

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Posted 20 February 2009 - 03:00 PM

Over the past couple of years, I have been observing the interpretation of the UK police force of the common law offence of assault under s39 of the Criminal Justice Act 1988. The obvious distinction between this offence and battery is the presence of contact in the latter and absence of contact in the former.


Technically, s39 Criminal Justice Act 1988 does not create an offence of common assault, it merely states that the mode of trial for this offence is summary only. Common assault remains an offence contrary to the common law, as the name suggests. Whilst battery requires physical contact, assault does not require the absence of physical contact, it simply does not require it. After all there is an offence of assault occassioning actual bodily harm, and in the vast majority of these cases the offender has touched the offender. Usually there will be no problem in arresting someone who has beaten someone for assault since they usually will have assaulted the victim as well. Being physically touched by the offender does not prevent the victim from apprehending immediate unlawful personal violence, which is always that required for an assault. For ease the police usually refer to both battery and assault as "common assault".

#16 Law_Grad

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Posted 20 February 2009 - 08:36 PM

The relevance of my contract was to illustrate I will be practicing the law too and therefore add as some substance to the reason why I referred to the officers as 'fellow officers' - not because I am an officer myself, but because I consider all branches of the law to be an integral part of the system as a whole.



I would suggest that you rid your mind of this great big happy law family fantasy, which you seem to have created. And before it takes hold as well, as you are liable to do something daft and refer to someone you shouldn’t as “your fellow” and risk loosing any career in law.



Because whether you are or are not practicing law, has no bearing on the matter - as they are not fellow officers.

The common theme of law doesn’t automatically make others who are also involved with the law your “fellow” anything. Criminals are also involved with the law, but you wouldn’t refer to them as your fellow criminals would you.


And it isn’t being pedantic purely for forum fun, because if you start adopting or using this “fellow” phrase for other professions within the law, then you could come unstuck in a very big way.


Police officers if you aren’t a police officer are not your fellow officers, and solicitors if you are not a qualified solicitor are not your fellow solicitors - And there are many others within the law that that applies to as well.



Actually assault and battery are different things in common law


Most people are acutely aware that assault and battery are different items, which can exist exclusively from each other. But they are trying to tell you the following - that under most circumstances the interchangeable use of those terms at the point of arrest, doesn’t create any great waves or problems.

Edited by Law_Grad, 20 February 2009 - 08:36 PM.


#17 Seven

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Posted 20 February 2009 - 11:26 PM

As I understand things, if I decide to punch someone in the street, I am possibly committing two separate offences. One is an 'offence against the person', whether it be assault, battery, ABH or GBH; and the other is a public order offence, in this case probably affray (S3 POA).

If I decide to attack someone in private, only the first offence will apply. If two of us are play-fighting in the street, there is only the wider 'public order offence' of potentially making people scared.

Please correct me if I am wrong.



Affray can happen in private!

I think what LLB is referring to when talking about assaults being dealt with as public order offence is down to what CPS drop charges to... 2 people are seen fighting in the street (assault on each other) both make counter allegations... Officer arrests both for Affray s3 POA and CPS will charge them with Section 4 POA (this is a practice i've seen on a few occasions)

#18 Cromwell

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Posted 21 February 2009 - 11:57 AM

I would suggest that you rid your mind of this great big happy law family fantasy, which you seem to have created. And before it takes hold as well, as you are liable to do something daft and refer to someone you shouldn't as "your fellow" and risk loosing any career in law.


This is a bit harsh. I don't think he was trying to claim everyone is a big happy family; I think he was trying to be friendly.

#19 Akki

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Posted 21 February 2009 - 01:17 PM

Affray can happen in private!

I think what LLB is referring to when talking about assaults being dealt with as public order offence is down to what CPS drop charges to... 2 people are seen fighting in the street (assault on each other) both make counter allegations... Officer arrests both for Affray s3 POA and CPS will charge them with Section 4 POA (this is a practice i've seen on a few occasions)

Yep. Also where your IP won't make a complaint but there is clear evidence of the offender attacking the IP public order offences may be appropriate.

The problem with affray in a simple 1 on 1 fight or 1 person attacking another is that you get the Sanchez issue. Namely that if it's a one on one fight the hypothetical third person is unlikely to fear for there own safety. Hence s4 often being the charge.

#20 David

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Posted 21 February 2009 - 06:18 PM

If I have this right, you can have you can have battery without assault, but you can't have assault without battery.

Remember, assault is along the lines of 'any act by which a person intentionally or recklessly causes another person to apprehend immediate and unlawful and personal violence' - so to clobber someone from behind is battery, but it can't be assault since the person knew nothing of what was going to happen.

To step up to someone and wave a fist, then punch them, is assault because the victim knew what would/could/was going to happen.

#21 Akki

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Posted 21 February 2009 - 08:06 PM

If I have this right, you can have you can have battery without assault, but you can't have assault without battery.

No. You can have an assault without a battery.

I can cause you to anticipate immediate unlawful violence without touching you, hence no battery.

For instance, I could throw a punch and miss. Alternatively I could just threaten you, as long as you fear immediate personal violence then it's an assault.

#22 David

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Posted 21 February 2009 - 08:20 PM

Ah, thanks for clearing that up Akki. But I am correct with the gist? For instance, someone clobbering someone from behind can't be assault, but it is battery?

#23 Akki

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Posted 21 February 2009 - 08:29 PM

Ah, thanks for clearing that up Akki. But I am correct with the gist? For instance, someone clobbering someone from behind can't be assault, but it is battery?

Potentially. If he didn't anticipate it coming. But if I said 'I'm going to smack you' and then punched you in the back of the head, there would be an assault too.

It's academic really.

#24 Frag

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Posted 24 February 2009 - 06:02 PM

Actually assault and battery are different things in common law. One involves physical contact, one does not. Whether you want to accept this distinction is up to you but that is the law. What I wanted to know was whether or not this distinction would make a difference in reality and why officers tend to ignore the distinction in reality. Many people have responded and I am extremely grateful for that :prone:

As to me passing myself off as a police officer lol...obviously you have not read the whole post. I am alarmed as to your lack of contextual analysis. I made quite clear that my understanding of the criminal law was very theoretical. There is the hint... your suggestion is laughable.

The relevance of my contract was to illustrate I will be practicing the law too and therefore add as some substance to the reason why I referred to the officers as 'fellow officers' - not because I am an officer myself, but because I consider all branches of the law to be an integral part of the system as a whole.

I hope this has cleared up the misunderstanding on your part. Once again, I thank everyone for their responses.



An example of when assault and battery are used interchangeably in law: section 47 offences against the person act; assault occasioning actual bodily harm. For ABH, an assault needs to have occurred, this has been held legally to include battery.




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