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LLB1986

Distinction between common law assault and battery

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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

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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...

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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.

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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'.

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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

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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.

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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"

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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

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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.

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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

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@ 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:

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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.

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@ 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.

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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.

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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".

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