Divisional Court
| Published date | 01 December 2000 |
| Date | 01 December 2000 |
| DOI | 10.1177/002201830006400602 |
| Subject Matter | Article |
Divisional Court
Does
Battery
Require
Direct Physical Force?
Haystead
v
DPP
(2000) 164 JP 396
The appellant struck
the
mother
of a child by
punching
her
twice in
the
face. He was
having
asexual relationship
with
the
mother,
but
that
was
coming to
an
end
and
he
was
not
the
father
of
the
child. The
mother
was
holding
the
child (a boy of 12
months)
when
she
was
struck
and
the
direct result of
the
blows
was
that
the
child fell from
her
arms
to
the
floor
and
injured
his head. The appellant faced
three
charges of 'assault by
beating' in respect (1) of
the
mother
of
the
child, (2) of
the
child,
and
(3)
of a
neighbour
who
assisted
the
mother
and
child in
the
incident. He
pleaded guilty in respect of
the
charges relating to
the
adults,
but
not
guilty to
the
charge in respect of
the
child. The
present
appeal related
solely to his conviction in respect of
the
child. The justices
found
that
the
child was visible to
the
appellant
and
that
he
would
have
foreseen
the
risk of
injury
to
the
child, having regard to
the
degree of violence used
against
the
mother.
Before
the
magistrates' court, he submitted
that
he
had
no
case to answer, in that, before
he
could be convicted of
battery
it
was necessary to establish
that
he
had
used force
directly
to
the
person
of
the
child
and
there
was
no
evidence
that
he
had
done
so. The prosecu-
tion conceded
that
there
had
been
no
direct violence to
the
child
and
also
that
he
had
not
intended
that
any
harm
should be
done
to
the
child,
but
the
prosecution
submitted
that
he
had
been
reckless
and
that
his
violence to
the
mother
had
been
the
direct
and
sole cause of
the
harm
suffered by
the
child, so
that
it could be said
that
there
was
in effect
direct violence to
the
child. The magistrates convicted
the
appellant
on
this charge.
The
statutory
provisions relating to this charge do
nothing
to alter
the
ordinary
meaning
of
the
terms
used in
the
charge. Section 39 of
the
Criminal Justice Act 1988 does
no
more
than
state
that
'common
assault
and
battery
shall be
summary
offences
and
a
person
guilty of
either
of
them
shall be liable to a fine or
imprisonment
or
both'.
The magistrates considered
two
questions:
1. Was it
shown
that
the
defendant
was
reckless in relation to
the
child?
They
considered
that
this question was relevant, as afford-
ing sufficient mens
rea,
provided
there
was actual foresight: see Rv
Cunningham [1957] 2 QB 196.
2. Did
the
facts establish a
battery
properly so-called?
Having
found
recklessness
and
adirect battery,
the
magistrates con-
victed
and
an
appeal
was
taken
against conviction.
On appeal,
the
finding of recklessness was
not
challenged
and
it
became obvious
that
the
issue
was
not
as to recklessness or mens
rea,
but
was
concerned
only
with
the
actus
reus,
so
that
it was
the
second finding
by
the
magistrates
which
alone
was challenged. The appellant referred
to Archbold's Criminal
Pleading,
Evidence
and
Practice,
paragraph
19-160A,
541
The Journal
of
Criminal Law
where
battery is described as
an
act by
which
a
person
intentionally or
recklessly applies force to
the
complainant,
and
submitted
that
the
only
question is
what
is
meant
by
the
'application of force' in
the
context
of
battery. The magistrates
(who
appear
to
have
been
more
concerned
with
the
mens
rea
(recklessness)
than
with
the
actus
reus
(the beating) con-
cluded
that
to be guilty of reckless
battery
it was necessary to establish in
this case
that
unlawful force
was
applied by
the
appellant to
the
child
and
that
the
appellant
saw
the
possibility,
but
the
magistrates dealt
with
the
question in issue by adding
that
the
force used by
the
appellant was
'the
same as applying
the
force directly to
the
person
of
the
child'. Thus
the
single act was a
battery
on
both
the
mother
and
the
child.
On appeal,
the
issue
was
whether
by assaulting
the
mother
the
appellant
had
in fact assaulted
the
child by beating it. The appellant
submitted
that
the
magistrates
were
in
error
in finding
that
he
had
directly assaulted
the
child by beating because
that
requires
the
assailant
to
have
direct physical contact
with
the
person
beaten,
either
by bodily
contact or
through
something
physically controlled by
him
as, for
exam-
ple, a
weapon.
HELD,
APPEAL
DISMISSED.
Laws LJ stated (at 403D)
that
'There is
no
difference in logic or good sense
between
the
facts of this case
and
one
where
the
defendant
might
have
used a
weapon
to fell
the
child to
the
floor, save only
that
this is a case of reckless
and
not
intentional,
battery.'
COMMENTARY
The
upshot
of this decision is
that
aperson
can
be guilty of assault by
beating
when
the
forceful act is carried
out
by using
another
person
as
the
agency by
which
the
force is applied to
the
victim. And it is
no
doubt
true
that
if
someone
picks up
and
throws
a
person
out
of a high
window
and
he or she lands on
the
head
of a passer-by,
the
person
who
has
thrown
the
other
out
of
the
window
has assaulted
the
passer-by. But it
still feels
true
that
if
someone
beats A
and
direct injury follows for B it is
not
an
ordinary usage of language
to
say
that
that
person has
beaten
B.
It was
noted
above
that
the
legislature has
not
provided
any
special
meaning
for
the
terms used.
It
is, however, difficult to speak of
the
'ordinary'
meaning
of 'battery', since
the
man
in
the
street does
not
use
it (in its legal sense), as is
apparent
from
the
dictionary
where
this sense
is given
under
the
heading 'Law'. And
even
the
verb
'batter'
seems to be
confined to a series of
heavy
blows, causing great injury. But
the
word
'beat'
is
commonly
used
and
it
would
(will)
astound
the
man
in
the
street to learn
that
if
someone
beats A(only), he
may
be said to beat B,
if B suffers injury as a result of his beating A. The
man
in
the
street
would, it
may
be
thought,
support
the
appellant's arguments, as a
matter
of
common
linguistic usage
and
common
sense.
The
court
certified
the
following question as a point of law of general
public importance:
whether
the
actus
reus
of
the
offence of battery
requires
that
the
assailant have direct physical contact with
the
com-
plainant,
either
through
his body, such as by a
punch
or by a
medium
controlled by his activity, such as a
weapon.
542
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