Battery Powered? - The Need for Reform of Common Assault
| Author | Charlie Hayes |
| Position | B.A (Hons), LLB (University of Southampton) |
| Pages | 18-30 |
(2022) Vol. 12
Battery Powered? – The need for reform on the law of Common Assault
Charlie Hayes*
Abstract
The law on common assault and battery remains inexplicably detached from the major offences against the person
and indeed requires serious reform to ensure that the law on common assault is suitable as the criminal law evolves
over time. This article details the compelling case for legal reform on common as sault and why procrastination
over change is no longer acceptable. Firstly, the article cove rs the deficiencies of common assault and battery,
including arguments that a minimal statutory definition violates the principle of legality, the concept of imminency
inherent to assault is too robust in scope and the willingness of the common law to recognise that omissions
constitute a battery needs overhauling. The second section evaluates the Law Commission’s suggestions for
reforming the law on common assault, alongside a repertoire of academic opinions on how the law could be
reformed. The article concludes by focusing on what the future holds for the law in this area.
Introduction
he term ‘common assault’ typically refers to the commission of an assault or a battery.
Johnathan Herring elucidates that, technically speaking, common assault and battery
are two separate offences1 and this article treats battery and assault as separate and
distinct. Under the law of England and Wales, a common assault has no statutory definition.
Instead, the scope, operation and categorisation fall under the common law. Although assault
and battery are intrinsically linked to offences of a non-fatal, non-sexual nature, common
assault remains separate from these offences as the law does not fall under the Offences
Against the Person Act 1861.2 Where such offences against the person are concerned, there is
a hierarchy of offences that are ranked from the least serious as common assault and battery,
to the gravest (a charge of grievous bodily harm with intent to inflict such harm). This hierarchy
is largely governed by the Offences Against the Person Act 1861 which has been a great servant
to advocates dealing with crimes of this nature. Apart from assault and battery which, despite
their importance, remain detached from the statute in question.
The detachment of these two offences from their counterparts is baffling and indeed harmful.
It is important to remember that to prove the existence of certain graver offences such as actual
or grievous bodily harm, then one must first establish that an assault or battery was committed.
Within this particular family of offences, ostracising assault and battery from within the
statutory remit seem nonsensical given the importance of its role in establishing other
aggravating offences.
*B.A (Hons), LLB (University of Southampton). I would like to thank Dr Harry Annison for his incredibly
interesting tutorials on the subject that ultimately served as the inspiration for this article.
1 Johnathan Herring, ‘Criminal Law: Texts, Cases and Materials’ (8th edn, Oxford; OUP 2018) 310.
2 Offences Against the Person Act 1861.
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