Offences against the person - Assault

Learning Outcomes

This article outlines assault within offences against the person for SQE1, including:

• The precise legal definition of assault and its role as a common law offence forming part of “common assault” under s 39 Criminal Justice Act 1988.
• Detailed analysis of the actus reus and mens rea of assault, with emphasis on subjective recklessness and the requirement of apprehension rather than fear or actual force.
• The concept of immediacy, including how courts interpret “immediate” or “imminent” unlawful force in modern contexts such as phone calls, messages, and threats made at a distance.
• The distinction between apprehension and fear, and how a confident but expectant victim can still be assaulted for exam purposes.
• The legal effect of words, silence, gestures, and conduct, including when words can create, reinforce, or negate an assault.
• The operation of implied consent, self-defence, and other lawful justifications that prevent liability for assault in everyday and professional situations.
• Clear distinctions between assault and battery, with focus on contact versus non-contact harm and how both may arise from one incident.
• The function of assault as the “base offence” for more serious offences such as s 47 actual bodily harm and how exam questions commonly build on this.
• Application of these principles to SQE1-style multiple-choice and scenario-based questions, enabling accurate issue-spotting and structured problem-solving.

SQE1 Syllabus

For SQE1, you are required to understand the offence of assault as part of offences against the person, with a focus on the following syllabus points:

• the legal definition and elements of assault (actus reus and mens rea)
• the concept of immediacy in assault
• the effect of words, silence, and conditional threats
• the distinction between assault and battery
• how to apply these principles to factual scenarios
• the summary-only classification of common assault (charged under s 39 Criminal Justice Act 1988)
• the role of consent and lawfulness (everyday implied consent, self-defence, police powers)
• how assault/battery operate as “base offences” for s 47 OAPA 1861

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is required for an assault?
   1. physical contact
   2. the victim’s apprehension of immediate unlawful force
   3. actual injury to the victim
   4. the defendant’s intention to cause serious harm

2. True or false? Words alone can amount to an assault.

3. What is meant by “immediacy” in the context of assault?

4. Can a conditional threat ever amount to an assault? Give an example.

Introduction

Assault is a common law offence forming part of the offences against the person. It is frequently tested in SQE1 and underpins more serious offences such as assault occasioning actual bodily harm. For SQE1, you must be able to identify the elements of assault, apply the law to practical scenarios, and distinguish it from battery. In practice, “common assault” is charged under s 39 Criminal Justice Act 1988 (which sets mode of trial and maximum sentence), and encompasses both assault (technical/psychic assault) and battery (physical assault). It is a summary-only offence. The substantive definitions remain at common law.

Definition and Elements of Assault

Assault occurs when a person intentionally or recklessly causes another to apprehend immediate and unlawful personal force. No physical contact is required.

Key Term: assault
An act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal force.

The focus is on what the victim apprehends now, not on whether the defendant actually has the means or intention to carry out the threatened force, and not on whether the victim feels fear. Apprehension equates to expectation or belief that unlawful personal force will be applied immediately or in the immediate future.

Actus Reus: Causing Apprehension of Immediate Unlawful Force

The actus reus of assault is satisfied when the defendant’s conduct causes the victim to apprehend (expect) that unlawful force will be used against them immediately. The apprehension must relate to force that could occur at once, not at some distant time. The victim does not have to be fearful; it suffices that they anticipate unlawful contact.

Key Term: actus reus
The physical element of an offence; for assault, this is causing the victim to apprehend immediate unlawful force.

Important clarifications for actus reus:

• Apprehension means belief or expectation, not fear. A confident victim who expects to be struck has been assaulted even if they are unafraid.
• The defendant’s actual ability to carry out the threat is irrelevant if the victim apprehends immediate unlawful force (e.g., a mock weapon or empty threat can still suffice if the victim reasonably believes force will follow).
• The victim must perceive the conduct. If the victim is unaware (e.g., struck from behind without warning), there is no assault (though there may be a battery).

Words, Silence, and Conduct

Assault can be committed by words, silence, gestures, or a combination. For example, raising a fist, making a threat, or even remaining silent in circumstances that cause apprehension can all amount to assault. The modern approach recognises that “a thing said is also a thing done”: words alone may suffice where they cause apprehension of immediate unlawful force. Repeated silent telephone calls or threatening messages may also suffice if the context makes the victim expect violence imminently (for example, within “a minute or two”).

Words may also negate an assault. If the defendant’s words remove any expectation of immediate force, the actus reus is not made out. A threat qualified by words indicating no immediate action (e.g., “I would hit you if it weren’t illegal,” or “I’ll hit you tomorrow”) negates immediacy.

Unlawfulness is essential: apprehension must be of unlawful force. Force used in legitimate self-defence or by a police officer acting lawfully would not be “unlawful” and therefore cannot form the basis of an assault. Everyday social contact attracts implied consent (e.g., jostling on public transport, handshakes) and is ordinarily lawful unless exceeded.

Key Term: immediacy
The requirement that the victim apprehends unlawful force will be used against them without delay—i.e., in the immediate future.

Immediacy is interpreted flexibly. The courts accept that violence “at some time not excluding the immediate future” can be sufficiently immediate, provided the victim expects the application of force without delay. Physical proximity is helpful but not essential, especially in contexts like stalking, silent phone calls, or threats outside a locked property where entry and attack could occur imminently.

Mens Rea: Intention or Recklessness

The mens rea for assault is either an intention to cause the victim to apprehend immediate unlawful force, or recklessness as to whether such apprehension is caused. Recklessness is subjective: the defendant must foresee the risk that their conduct could cause such apprehension, and nevertheless go on to take that unjustifiable risk.

Key Term: mens rea
The mental element of an offence; for assault, this is intention or recklessness as to causing apprehension of immediate unlawful force.

No additional mental element is required as to any injury. Assault is a basic intent offence. It is sufficient that the defendant intended or foresaw the risk of causing apprehension of immediate unlawful force. Oblique intention does not normally arise because recklessness suffices as an alternative.

Immediacy and Conditional Threats

The requirement of immediacy means the victim must believe that force could be applied at once. However, the courts interpret immediacy flexibly. For example, a threat made over the phone or by message may suffice if the victim fears violence could occur at any moment. A person watching outside a window late at night, coupled with a menacing gesture, can cause apprehension of immediate violence even though the door is locked.

Conditional threats may or may not amount to assault. If the condition negates the possibility of immediate force, there is no assault (e.g., “If you are here tomorrow, I will hit you”). If the threat is conditional but the victim still fears immediate force if the condition is breached now (e.g., “If you don’t leave now, I’ll hit you”), assault is made out because the victim apprehends immediate unlawful force contingent on their immediate choice.

Further guidance:

• Words that qualify or postpone the threat (e.g., “if not for the police officer right outside I would hit you”) may negate immediacy in some contexts, but if the defendant is poised to strike in close quarters, the totality of circumstances may still cause the victim to apprehend immediate unlawful force.
• A defendant’s actual capacity or presence of barriers do not necessarily remove immediacy if the victim reasonably believes an attack could follow without delay (e.g., the defendant could swiftly overcome a barrier).

Worked Example 1.1

Scenario:
Sam raises his fist at Lee and says, “If you don’t leave now, I’ll hit you.” Lee believes Sam will strike him immediately if he stays.

Answer:
This is an assault. The conditional threat (“if you don’t leave now”) does not negate immediacy, as Lee fears immediate unlawful force if he remains.

Worked Example 1.2

Scenario:
Jordan sends repeated silent phone calls to Pat late at night. Pat fears that Jordan is watching and may attack at any time.

Answer:
This is an assault. Silence can amount to assault if it causes the victim to apprehend immediate unlawful force.

Worked Example 1.3

Scenario:
Alex waves to get a friend’s attention. A bystander, Ben, mistakenly thinks Alex is threatening him and feels afraid.

Answer:
There is no assault. Alex did not intend, nor was he reckless as to, causing Ben to apprehend immediate unlawful force.

Worked Example 1.4

Scenario:
D places a hand on the hilt of a sword but says, “I would hit you, but I won’t do anything today.” V relaxes and does not expect to be struck now.

Answer:
Not an assault. The words negate immediacy. Despite the threatening gesture, the defendant’s qualification removes V’s apprehension of immediate unlawful force.

Worked Example 1.5

Scenario:
E stands outside F’s ground-floor window at night, staring in and making a throat-slitting gesture. F, alone inside, expects E could attack within moments.

Answer:
Assault. Even though E is outside, F apprehends immediate unlawful force. “Immediate” includes imminent violence within a minute or two, not only instantaneous blows.

Exam Warning

For SQE1, remember that assault does not require physical contact or actual injury. The focus is on the victim’s apprehension of immediate unlawful force and the defendant’s intention or recklessness. Apprehension is not fear; the victim must expect unlawful force now or in the immediate future. Words can suffice; words can also negate immediacy.

Distinction from Battery

Assault and battery are often charged together but are distinct offences. Assault is causing apprehension of force; battery is the actual application of unlawful force. Both are charged under s 39 Criminal Justice Act 1988 as “common assault”, but they are separate offences with different actus reus.

Battery requires contact. It can be direct (e.g., punching), indirect (e.g., setting a trap, throwing an object, spitting, setting a dog on the victim), delayed (e.g., digging a hole the victim later falls into), or exceptionally by omission (e.g., failing to remove a force that is being applied after acquiring mens rea). Everyday contact is lawful if within implied social consent. Touching clothing can be treated as touching the person. Battery is also a basic intent offence: intention or subjective recklessness as to the application of unlawful force suffices.

Key Term: battery
The intentional or reckless application of unlawful force to another person.

Assault commonly precedes battery when the victim sees an attack coming, but battery can occur without any prior apprehension (e.g., a blow from behind). Conversely, assault can occur without battery (e.g., threats or gestures with no contact). In practice, if both occur, both offences are often made out from the same incident.

Lawfulness and consent operate across assault and battery:

• Self-defence and defence of others render force lawful if reasonable in the circumstances.
• Everyday jostling and socially acceptable touchings attract implied consent.
• Where consent is expressly given (e.g., sports, medical treatment), application of force may be lawful within the scope of that activity, although consent has limits where harm is intended or inflicted outside recognised categories.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Assault is committed when a person intentionally or recklessly causes another to apprehend immediate and unlawful personal force.
• The actus reus is causing apprehension of immediate unlawful force; no contact is required and fear is not required—apprehension means expectation.
• The mens rea is intention or subjective recklessness (foreseeing the risk of causing apprehension and unjustifiably taking it).
• Immediacy means the victim must fear force could occur at once, but courts interpret this flexibly to include imminence (“not excluding the immediate future”).
• Words, silence, gestures, or conditional threats can all amount to assault if the victim apprehends immediate unlawful force; words can also negate an assault by removing immediacy.
• Unlawfulness matters: implied consent to everyday contact and lawful force (e.g., self-defence, lawful arrest) prevent assault.
• Assault is distinct from battery, which requires actual physical contact; battery can be direct, indirect, delayed, or in limited cases by omission once mens rea arises.
• “Common assault” is charged under s 39 Criminal Justice Act 1988 and is summary-only; assault/battery often form the base for s 47 ABH.

Key Terms and Concepts

• assault
• actus reus
• immediacy
• mens rea
• battery