Violence and injury
Common assault and battery
Criminal Justice Act 1988, s.39 (common assault); battery at common law
England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.
- Triable
- Summary only
- Maximum penalty
- 6 months' custody (s.39); higher maxima for racially/religiously aggravated variants and assault on an emergency worker under separate statutes
Actus reus
- Assault: cause the victim to apprehend immediate unlawful personal violence (threat only — no touch required).
- Battery: intentional or reckless application of unlawful force to another (even slight — e.g. spitting, grabbing).
- Force must be unlawful — lawful authority or valid consent negates the actus reus.
Mens rea
- Intention to cause apprehension of immediate violence (assault), or intention/recklessness as to applying force (battery).
- Recklessness means the defendant foresaw the risk and went ahead anyway (subjective test).
Verified case law
Fagan v MPC[1969] 1 QB 439
A continuing act can satisfy the actus reus of battery where the defendant maintains a situation they created.
Collins v Wilcock[1984] 3 All ER 374
Not every touch is battery; force must be intentional or reckless and outside the scope of ordinary social contact.
R v Venna[1976] QB 421
Mens rea for battery is intention or recklessness as to applying force.
Defences
Self-defence (s.76 CJIA 2008) · Consent (within lawful bounds) · Prevention of crime · Lawful arrest/resistance issues
Disclosure to press for
- BWV and CCTV of the incident and any prior context (door staff, pub ejection, hospital walk-in).
- Injury photos and whether the OIC is considering s.47 ABH instead of s.39.
- Named witnesses and any MG11 summaries provided.
Interview themes (from instructions)
- Unlawful force denied, accidental contact, or self-defence (Criminal Justice and Immigration Act 2008, s.76).
- Everyday touching / implied consent is a narrow Collins v Wilcock point — not a sport-consent doctrine.
- Identification if more than one person is in the footage.
Sentencing Council
Sentencing Council definitive guideline effective 1 July 2021. Category by culpability and harm; offence range for basic common assault: discharge to 26 weeks' custody.
At the police station
Read the charge sheet — s.39, emergency worker, and racial aggravation are different offences. Ask for BWV from arrival. If injuries are photographed, discuss whether s.47 is realistic before any admission. Self-defence instructions need the client's perception of threat, not only who threw the first punch on CCTV.
When to involve a rep or solicitor
Police station advice is free under legal aid and is not means-tested. Common assault is standard scheme work. Tell the firm if the officer mentions ABH, strangulation, a weapon, or an emergency worker — charging and maxima change.
Related offences
Authoritative sources for this page
Statute plus Sentencing Council (and CPS where listed) are the two primary sources we used for mode of trial, maximum and elements. Case links are from our verified registry only.