OFFENCES AGAINST THE PERSON

11.1 Common Assault and Battery

Assault and battery are “common law” offences. Although the term assault is often used to cover situations involving both assault and battery, they are in fact two separate offences.

Assault

Assault is defined at common law as “any act which puts a person in fear of immediate and unlawful violence”. So if you go to throw a punch at somebody and they fear that you will carry it out, this is enough to constitute the offence. The victim does not have to be actually afraid – he will be deemed to “fear” violence, if he anticipates that the punch will be carried out.

Battery

Battery is defined at common law as “the application of unlawful violence” by the accused on the victim. The slightest touching is enough to constitute a battery, but the courts have recognized that everyday life involves many incidents of contact between persons which should not be treated as criminal.

Points to Note on battery and assault

•For both assault and battery, the prosecution must show that the violence was unlawful. If on a demo you see the police attacking someone using unreasonable force – eg punching or kicking someone on the ground - , then you would be entitled to use reasonable force to defend them. If you were then arrested for assault and / or battery, it would be a possible defence to say that you were using reasonable and therefore lawful force in preventing crime or in self defence. It would be for the magistrates to decide whose force was reasonable in the circumstances, and of course video or independent evidence is vital in these circumstances.
•It would not be a battery for a police officer to tap you on the shoulder to get your attention or for you to do likewise. But the police cannot use force to detain you against your will, unless you have been arrested or are being searched.
•Assault can be committed by words as well as actions, so long as the threat of violence is immediate.
•Assault and / or battery is punishable summarily by up to 6 months imprisonment or a fine.
•Neither assault nor battery are therefore “arrestable offences” but the police do have several powers of arrest where they reasonably suspect you of assault or battery. They may arrest you
i)at common law to prevent a breach of the peace, or
ii) using a statutory power of arrest – eg for assaulting a police officer in the execution of his duty or
iii) under any of the general arrest conditions apply under Section 25 of PACE, or
iv) for an “arrestable” offence – eg assault causing actual bodily harm, or violent disorder.
In each of the above cases, the police may subsequently charge you with common assault or battery.

11.2 Assaulting or Obstructing a Police Officer in his line of duty

This is defined by Section 89 of the Police Act 1996.
Section 89(1) makes it an offence to assault a constable in the execution of his duty.
Section 89(2) makes it an offence to resist or wilfully obstruct a constable in the execution of his duty.
Points to Note
•The key point in either case will be whether or not the constable was acting in the execution of his duty – and therefore lawfully - at the time of the offence. There is no statutory definition of a police officer’s duty, but it has been said by the courts to include taking all steps necessary to protect life and limb, to keep the peace, to prevent crime and to detect crime.
•The charge of wilful obstruction is most likely to be brought where a police officer was exercising his common law powers to prevent a breach of the peace. At common law, a police officer is empowered to take all steps reasonably necessary to prevent a breach of the peace. This includes not only the power of arrest, but any other step he considers necessary. Say, for example, you are doing a demo outside an office premises and the police instruct you to stand on the opposite side of the road. You refuse and are arrested, and you’re later charged with wilful obstruction of the police contrary to Section 89(2). If the case gets to court, the magistrates would have to decide whether or not the police were acting in the execution of their duty at the time. The police officer would have to show that moving you across the road was necessary to perform his duty as a police officer – eg to prevent crime, to protect the safety of the public or to prevent a breach of the peace.
•The threat of arrest for obstruction is widely used and abused by the police to make protestors do as they are told. This should be challenged wherever possible. If the police tell you what to do on a demo, ask what power they are exercising. If there is no Section 14 or 12 in force, then they can only rely on their powers at common law. The police cannot use their powers to deny the exercise of basic human rights. If you think they have done, you can sue them under Section 6 of the Human Rights Act 1998.
•The High Court has ruled that the police are acting in the course of their duty when they remove trespassers from premises. It follows from this that if, during the course of a protest, you resist the use of reasonable force by the police in making you leave, you could be prosecuted for wilful obstruction under Section 89(2).
•You cannot be guilty of assaulting a police officer under Section 89(1) if it can be shown that he was not acting in the course of his duty. However, this does not mean that you would not be liable for one of the other assault or public order offences – e.g. common assault - and you are more likely to be charged with one of these offences if the prosecution foresees problems in proving that the constable was acting in the execution of his duty.
•Both offences under Section 89 are summary only. Assault of a police officer is punishable by up to 6 months imprisonment, and obstruction by up to 1 month.
•Assaulting a constable in the execution of his duty (s89(1)) is an “arrestable offence” as it is contained within the schedule of arrestable offences in Section 24 of PACE.
Wilful obstruction of a constable (s89(2)) is not an arrestable offence, but the the police have alternative powers of arrest for breach of the peace and under Section 25 PACE.

11.3 Assault Causing Actual Bodily Harm

Assault causing actual bodily harm (ABH) is an offence under Section 47 of the Offences Against the Person Act 1847. Such an assault is a defined as an assault or battery, which in addition causes actual bodily harm. This need not be permanent or serious, but more than just a push or shove on a demo. There does not necessarily need to be a bruise or swelling if the victim is caused sufficient pain or discomfort.

Points to Note

•ABH is an “either way” offence, which carries a maximum sentence of 5 years on indictment or 6 months summarily. It is therefore arrestable under Section 24 of PACE.
•The police may often arrest you on suspicion of ABH or GBH (see below) where their arrest powers are otherwise insufficient – eg after an assault has taken place – and then later drop the charge to common assault.

11.4 Assault Causing Grievous Bodily Harm

The Offences Against the Persons Act 1847 contains 2 offences of wounding or causing GBH under Section 18 and 20. Section 18 is by far the most serious as it carries a maximum sentence of life imprisonment, whereas the maximum for Section 20 is 5 years. The difference is that the prosecution must prove that you intended to cause serious bodily harm under Section 18, whereas they need only show that you acted recklessly under Section 20.

Points to Note

•Under both sections, an assault causing grievous bodily harm or wounding is defined as follows. To constitute a wound the whole skin must be broken. It must be more than a scratch, but one drop of blood would be sufficient.
•Grievous bodily harm must be “really serious harm”, an obvious example of which would be a broken bone. There is no legal definition however, and it is a question of fact for the jury to decide.
•Both offences under sections 18 and 20 are arrestable under Section 24 PACE and triable on indictment only

11.5 Alternative Charges

For all of the above assault charges, the prosecution will need to prove that some harm has been inflicted. For this they will need a victim to give evidence to that effect. Where they are unable to do this, alternative charges may be brought under the Public Order Act 1986. Under several sections of this act, a conviction may be secured if it can be shown that a person was likely to fear violence etc, and no “victim” need actually testify to this effect. This is why public order offences are often charged as an alternative to more serious assault charges.
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