Common assault (sometimes referred to as simple assault) is the least serious form of assault. As an offence, common assault covers anything from making somebody believe you are going to hit them to inflicting a severe beating where no injury is caused. However, common assault can include an incident where no injury can be proven by the prosecution. The idea of the offence is that it is illegal to intentionally or recklessly cause another person to suffer or apprehend immediate unlawful violence. Once an unlawful force has been inflicted, the assault becomes a physical assault offence.
The classic definition of common assault is any act which intentionally or recklessly, causes another person to apprehend immediate and unlawful personal force. This definition was determined during the Fagan v Metropolitan Police Commissioner in 1969.
Imagine you are having a quiet drink in a pub with some friends. You are at the bar waiting to be served when a man called Fred comes in and tries to jump the queue. When you politely ask Fred to wait his turn he looks at you, raises his fist and says, “Don’t tell me what to do or I’ll smash your face in”. Fred, however, does not touch you. Has Fred committed an offence?
There are a couple of factors to this scenario which prove that Fred was acting unlawfully. These are:
- The raising of his fist
- The threat to “smash your face in”
- That both appear to be intentional acts
The first two points constitute as the actus reus and mens rea of common assault. As discussed in previous blogs, the physical part of the crime is the actus reus which is commonly defined as a physical activity that harms another person or damages property which makes it criminal act. The mens rea of a crime is the intention or knowledge of wrongdoing. According to the definition above, Fred has committed common assault, contrary to common law and section 39 of the Criminal Justice Act 1988.
Common assault does not always have to include a raised fist. In Misalati  EWCA 2226 the appellant spat towards the complainant. The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.
So, what about the mens rea of common assault? The mens rea for common assault is that the defendant must intend to cause the victim to apprehend immediate person force, or be reckless as to whether such apprehension be caused (R v Venna .
The test for recklessness is subjective, meaning the defendant must see the risk that the victim will apprehend immediate unlawful personal force and go on to take that risk. This was defined in the R v Spratt case in 1991. It does not matter whether you, me, and everyone else in the world would have foreseen that risk. If the defendant did not foresee the risk and the prosecution cannot prove that he or she did foresee that risk, the defendant will be entitled to an acquittal.
For example, if the defendant fires an air rifle at a tree which is in line with a children’s playground full of children and narrowly misses a child playing. Is this defendant guilty of common assault? The defendant is only liable for assault if the prosecution can prove the defendant intended or was reckless as to the causing of the apprehension in the child. Without the mens rea being present, in the law’s eyes there is no offence of common assault.
Points to Note
An element of the offence of common assault is lack of consent so that the prosecution may, where it is a live issue, have to establish that the offence was committed without consent. However, in the CPS v Shabbir  case, a lack of consent can be inferred from evidence other than the direct evidence of the victim. Most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact (Collins v Wilcock .)
Common assault is a summary offence. However, if the requirements of section 40 of the Criminal Justice Act 1988 are met it can be included as a count on an indictment.
It is also important to note the word “immediate” in the definition for common assault. It is not enough that the victim immediately believes that the unlawful personal force may occur; the victim must believe that it may occur immediately. In other words, realising straightaway that someone might hit you/make contact with you at some stage in the future is not enough to establish a common assault offence. So, if the defendant says, “I will be around next week with some mates to give you a good kicking”, he or she will not be guilty of common assault. This is because the victim realises that the force might follow, but in a week’s time. This victim is not apprehending immediate force.
But it is significant that the victim fears that the force could occur immediately. In the case of R v Burstow , the defendant had stalked the victim over a number of years, sending her photographs and letters, telephoning her and visiting her home. The victim suffered psychiatric injury as a result. The court decided that if the victim had feared that the defendant could strike at any time, that would be sufficient to establish the actus reus of common assault.
Another act that could be classed as common assault are conditional threats. For example, is it an assault if a defendant says to you, “If you do not shut up, I will slap you.” In a sense, whether you get hit or not is in your own hands as you will not get hit if you shut up. But the law takes the view that such an imposition on a victim and the unjustified restrictions on their personal liberty is unwarranted. Therefore, according to the Read v Coker (1853) case, the defendant would still be liable for assault.
The maximum sentence for a single common assault offence is 6 months imprisonment. However, it is important to note that in cases that include two offences together, a magistrates’ court can impose a maximum sentence of 6 months for each incident/offence to run consecutively. This means that a defendant can be sentenced to a whole year in prison for two accounts of common assault.
When a common assault offence is racially or religiously aggravated the maximum sentence is 2 years imprisonment.
There are a range of defences available to those accused of committing a common assault, and their likelihood of success will vary depending on the circumstances of your case and the type of assault charged. A person may use such force as is reasonable in the circumstances for the purposes of:
- defence of another
- defence of property
- prevention of crime; or
- lawful arrest
How can we help?
If you have been charged with the offence of common assault then we can provide our expert defence team to represent you in court and help you avoid a potentially damaging criminal record.
We will look at all the facts of the accusation, from whether the police officer’s actions were lawfully applied with all the way through to whether your actions actually amounted to a criminal act.
Our team of litigators and advocates have many years of experience analysing complex factual scenarios and applying them to often novel areas of law ensuring we get the best possible results for our clients. Do not hesitate to call us on 07739795433 or email us on firstname.lastname@example.org to get expert legal advice for you and your case.