Common Assault and Battery

These offences are created by section 39 of the Offences Against the Person Act.


If a person is charged under section 39 of the Offences Against the Person Act this will either be for an "assault" or "battery". 

An ASSAULT occurs if the defendant intentionally or recklessly causes another person to fear or apprehend immediate and unlawful violence. It is the causing of the fear of violence which is the assault, even if no violence is used. This is a very wide definition and can include an offence committed by words alone. This was illustrated in one appeal court case where a man's conviction was upheld after he had repeatedly made silent phone calls to a number of women. It illustrates the point that, even without violence being used, the causing of the immediate fear or apprehension of violence amounted to a common assault. 

The offence of BATTERY is committed if a person intentionally or recklessly on applies unlawful force to another person. Once again this is a very wide definition and does not have to result in injury. People are regularly convicted of common assault for spitting on another person. There is no injury but it amounts to a common assault by beating.

In order to be guilty of assault or battery, a person must either have to intend that physical force is used for fear, or being reckless as to whether either occurs.


Although there are many varied defences to the charge of common assault the following are those most regularly seen and dealt with by the Magistrates court:-

1 – SELF DEFENCE. The law will allow a person to use reasonable force to prevent any unlawful violence against them or another. If a person is using force against an assailant to prevent this, then that person's conduct is not unlawful but is justified in law. The court will always consider whether the force used by the individual was reasonable and proportionate. Whilst the court will allow reasonable actions to amount of self defence, the amount of force used must be sufficient simply to prevent any assault . Once an assault has stopped, there is no longer a legal justification for the continued use of force. Very often an individual will continue to use force against the perpetrator, after the initial assault has taken place. The danger here is that the person then goes from being the victim , to the perpetrator of an assault.

Self defence can apply where an individual has not actually been assaulted but has genuinely and reasonably feared an immediate attack. Once again provided reasonable and proportionate, the law will allow a pre-emptive strike.

2 – ACCIDENT – there are many cases where a person has received injury, entirely by accident. This can be if an incident occurs in a busy or public place. There can be circumstances where a person's behaviour has been quite reasonable, not reckless, but has inadvertently caused injury to a third party. If the MagistrateS Court accepted that an injury caused was by accident, then this would amount to a defence.

3 - FACTUAL. In many cases where a person is  charged with common assault, their defence may simply be that the complainant is telling lies. For many and varied reasons, people will make false allegations of assault. If the allegations are false, there will often be no corroborating evidence such as photographs of injuries, independent witnesses etc. As with all charges of common assault, expert cross-examination of any complainant in such a case is vital so as to expose the dishonesty of any prosecution witnesses.


If a person is convicted of an offence of common assault wether by beating, or otherwise, the courts powers are  wide.

The penalty imposed will depend upon the circumstances of the offence, the nature of any injury caused and the presence of any number of aggravating features. The court will also take account of whether there was any provocation by the complainant.

Where there is an assault where no injuries are caused, and there are no aggravating features then this can often result in a fine or a conditional discharge being imposed.

In the case of a common assault where there is no injury but one of the aggravating features (see below) are present then the court will consider the imposition of a community order. The court has the power to order that a person convicted of common assault in these circumstances performs a number of hours of unpaid work.

When convicted of a common assault, a defendant will very often fear the imposition of an immediate prison sentence. They will usually only be at risk of this if there is an injury and there are two or more aggravating features present.


 The most serious  aggravating features are,  the use of a weapon, a  planned assault, head-  butting , kicking, stamping or  strangulation. This can also  include offences which have  been motivated by hostility  towards a person's sexual  orientation or disability, any action as part of a group against a single victim or the abuse of a position of trust.

The court will also have regard to the injuries, whether or not the victim was especially vulnerable, if the offence was committed in the presence of a child or if there had been previous violence or threats to the same victim. This list is not exhaustive.


If a person is convicted of common assault in a domestic violence context the court will have regard to specific sentencing guidelines for domestic violence cases.

We are very often instructed by defendants in domestic violence cases where the complainant has attempted to retract their complaint, usually because the parties have reconciled. Unfortunately, recent policy decisions have made it extremely difficult for the Crown Prosecution Service to discontinue proceedings once charges have been laid . Furthermore the sentencing guidelines indicate that if a person is convicted of an offence of violence in a domestic context, the sentence imposed should be determined by the seriousness of the offence and not the wishes of the victim.

However, in a case of a domestic violence, following conviction, the court  will have regard to whether or not the parties are planning to continue their relationship. This will be a factor when deciding what penalty to impose. The obvious concern from the perspective of the police or Crown Prosecution Service is that any reconciliation is only temporary. The fear is that in dropping proceedings or treating a defendant lightly, this exposes a complainant to possible further injury or danger. Hence the difficult in trying to persuade the Crown Prosecution Service to discontinue proceedings for common assault prior to a trial date.

This also indicates the importance of specialist and experienced legal defence when facing prosecution for any offence of common assault.
In any conviction for domestic violence assault the court will always require a presentence report prepared by the probation service. The court will also give the complainant the opportunity to prepare a victim personal statement.

As with all common assault offences there are aggravating features but there are also aggravating features which are specific to domestic violence cases. These include abuse of trust/abuse of power, a proven history of violence or threats within the domestic setting, and disobedience of previous court orders.
The court will also have regard to whether or not the victim is particularly vulnerable or if there has been any impact upon children.

Why choose our Assault & Battery Solicitors?

Our Physical Assault solicitors have established a working relationship with some of the finest barristers in the country. Should any proceedings require representation by a barrister you can rest assured that only those barristers that we feel will give you the very best assistance will be incorporated into the legal team. At Professional Defence Lawyers you will only be advised by a solicitor with at least 20 years experience. At court you will be represented by the by a solicitor or barrister of the appropriate level of experience and knowledge.

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About Professional Defence Lawyers

Rob BimpsonProfessional Defence Lawyers is a dedicated defence firm of specialist Lawyers headed by Rob Bimpson and Tim Chapman. Both are Solicitors who have been qualified for over 20 years.

About Professional Defence Lawyers


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