## **Learning Outcomes**

This article explains the key elements constituting the offence of battery in criminal law, emphasising how they are examined in SQE1 assessments. It details the components of the actus reus, including the unlawful application of force, the possibility of direct and indirect contact, liability arising from omissions where a duty exists, and the significance of the “continuing act” analysis. It also outlines the mens rea of intention or subjective recklessness as to the application of unlawful force, distinguishing this from any requirement to intend or foresee injury. The article examines the role of context and implied consent in everyday interactions, clarifying why ordinary social contact is usually lawful while more invasive touching may amount to battery. It analyses the concept of consent and its public policy limits, showing how hostility or injury is not required, how contact through clothing or via objects can suffice, and how battery may occur without any preceding apprehension. Overall, it provides a structured framework for identifying battery, differentiating it from assault and s 47 ABH, and applying these principles accurately to SQE-style problem questions.

## **SQE1 Syllabus**

For SQE1, you are required to understand the core principles of criminal liability, including the offence of battery, and to identify the elements of the offence and apply them to factual scenarios, with a focus on the following syllabus points:

- The definition and elements of battery.
- The distinction between assault and battery.
- Direct and indirect application of force.
- Liability for omissions in the context of battery.
- The mens rea requirements of intention and recklessness.
- The role and limits of consent as a defence.
- The effect of implied consent and “generally acceptable standards of conduct” in social life.
- How battery is commonly charged and sentenced alongside assault under s 39 Criminal Justice Act 1988.
- The interaction between battery and s 47 ABH where injury is caused, including constructive liability principles.

## **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 the actus reus of battery?
   a) An apprehension of force by the victim.
   b) An intention to cause harm.
   c) The application of unlawful physical force.
   d) Serious injury resulting from the contact.

2. Can battery be committed by an omission?
   a) Yes, always.
   b) No, battery requires a positive act.
   c) Yes, but only if there is a recognised legal duty to act.
   d) No, unless the omission was intended to cause harm.

3. What level of mens rea is required for battery?
   a) Intention only.
   b) Recklessness only.
   c) Negligence.
   d) Intention or recklessness.

4. True or false? Consent is never a defence if actual bodily harm is caused, even if the contact itself was consented to.

## **Introduction**

Battery is a common law offence, often charged alongside assault under the umbrella term 'common assault'. However, it is a distinct offence focusing on the actual application of unlawful force, rather than causing an apprehension of it (which constitutes assault). For charging and sentencing, both assault and battery fall under s 39 Criminal Justice Act 1988, but they remain separate offences and must not be treated as interchangeable. Understanding battery requires analysing its constituent parts: the actus reus (the guilty act) and the mens rea (the guilty mind). For SQE1 purposes, you need to be able to identify these elements and apply them correctly to scenarios, distinguishing battery from other offences against the person, and recognising when the facts escalate liability to s 47 ABH because injury has been caused.

## **Actus Reus of Battery**

The actus reus of battery is the application of unlawful physical force to another person. Each component of this definition requires careful consideration.

### **Application of Force**

Force in the context of battery does not require violence or injury. The slightest touch can be sufficient if it is unlawful. There is no requirement of hostility, malice, or that the victim feels the touch. Spitting, throwing a drink, prodding with a stick, or stepping on someone’s foot all involve “force” for battery if unlawful.

> **Key Term: Force (in Battery)**
> Any physical contact with the body of another person without their consent or other lawful justification. It need not be hostile, aggressive, or cause pain or injury.

The application of force can be direct or indirect. It can also be mediated through an object and, in limited circumstances, arise through a failure to act once a duty exists.

#### **Direct Force**

This involves the defendant directly touching the victim, such as pushing, slapping, or punching them. Even touching the victim's clothing while they are wearing it can constitute battery (_R v Thomas_). A kiss without consent, tapping someone with a finger, or brushing past a person in a way that exceeds ordinary social contact are all capable of amounting to battery if unlawful.

#### **Indirect Force**

Force can also be applied indirectly. This occurs where the defendant causes force to be applied to the victim without direct physical contact between them. Examples include:

- Throwing or launching objects so that they strike the victim.
- Setting a trap that results in the victim falling and suffering force when the trap is sprung (e.g., placing obstacles or digging a hole to be fallen into later).
- Using another person or an animal to transmit the force (for instance, pushing someone into the victim, or setting a dog on someone).

Indirect force is well established: it is sufficient that the defendant’s conduct causes force to be applied to the victim’s body, whether immediately or with some delay.

Setting a trap or using an object (like throwing a stone that hits someone) can also constitute an indirect application of force.

### **Worked Example 1.1**

David, during an argument with Claire, punches her arm while she is holding her young child, Ben. As a result of the blow, Claire drops Ben, who falls to the ground but is uninjured. Has David committed battery against Ben?

> **Answer:** Yes. Although David did not directly touch Ben, his action of punching Claire directly caused force to be applied to Ben when he was dropped. This constitutes an indirect application of force sufficient for the actus reus of battery (_Haystead v Chief Constable of Derbyshire_).

Indirect force can also occur by causing panic or channeling people into dangerous situations. Blocking an exit and shouting “fire” may lead to victims being crushed against a door; the resulting application of force to their bodies is attributable to the defendant’s conduct. Similarly, pouring a dangerous substance into a device so that the next user is exposed to harmful contact applies force without direct touch.

#### **Force Applied via an Object**

The law treats force applied “through the medium of an object” the same as force applied by the defendant’s body. Driving a car over a person’s foot, throwing liquid, or using a stick to poke someone are all ways of applying force via an object. The key point is that the defendant’s conduct results in physical contact with the victim’s body.

#### **Degree and Context of Force**

Any amount of unlawful force, however slight, may suffice for battery. But social context matters. Courts recognise a baseline of inevitable, everyday touching (e.g., jostling in a crowded train or brushing past on a busy pavement). Ordinary, consensual or impliedly consented contact is not unlawful. The question is whether the touching exceeds “generally acceptable standards of conduct” given the situation. A light tap to gain attention may be acceptable in one context but not in another (e.g., where the recipient has clearly indicated they do not consent to any contact). Always assess unlawfulness and context together.

### **Omissions**

While typically requiring a positive act, battery can, in certain circumstances, be committed by an omission (a failure to act). This is only possible where the defendant is under a legal duty to act.

> **Key Term: Omission**
> A failure to act. In criminal law, liability for an omission generally only arises when there is a legal duty to act, such as one arising from a contract, a special relationship, a voluntary assumption of care, or the creation of a dangerous situation.

Where a defendant creates a dangerous situation and fails to rectify it, omission liability may arise. The “continuing act” analysis also allows liability to attach where initially accidental contact is deliberately maintained after awareness.

Examples include:

- A defendant accidentally moves a vehicle onto a person’s foot (no battery at that moment due to lack of mens rea). On realising this and refusing to move, they maintain the contact; at that point battery is made out because the continuing act is coupled with the necessary mens rea.
- A defendant assures a searching police officer that there are no needles, knowing there is a hypodermic needle in their pocket; when the officer is pricked, the failure to warn in a dangerous situation can amount to battery by omission.

### **Worked Example 1.2**

PC Jones tells Finn she is going to search him. Finn fails to tell PC Jones he has a hypodermic needle in his pocket. When PC Jones searches Finn’s pocket, her finger is pricked by the needle. Can Finn be liable for battery by omission?

> **Answer:** Yes. Finn created a dangerous situation by having the needle and remaining silent about it when aware a search was occurring. This created a duty to act (to warn the officer). His failure to do so, resulting in the application of force (the needle pricking the officer), can constitute the actus reus of battery (_DPP v Santana-Bermudez_).

### **Worked Example 1.3**

Alex parks so that a car tyre accidentally comes to rest on a police officer’s foot. Alex immediately realises this but refuses to move the car, leaving the tyre on the foot for several minutes. Is there a battery?

> **Answer:** Yes. Initially there is no battery as the contact is accidental and Alex lacks mens rea. Once Alex realises the situation and deliberately maintains the contact by refusing to move the car, the continuing act coupled with mens rea amounts to battery. The force is applied via an object and is unlawful absent any justification.

#### Exam Warning

Battery by omission is limited. Look for a legally recognised duty and either (i) creation of a dangerous situation with a failure to act reasonably to avert harm, or (ii) a continuing act where the defendant knowingly maintains contact. A mere failure to assist, without a duty, is not enough.

### **Unlawful Force**

The force applied must be unlawful. Force may be lawful if the victim consents to it, or if the defendant is acting in lawful self-defence or prevention of crime, or exercising a lawful power (e.g., a police officer making a lawful arrest).

> **Key Term: Unlawful Force**
> Force applied without the consent of the victim and without any other lawful justification (such as self-defence, prevention of crime, or parental chastisement within lawful limits).

Everyday contact, such as jostling on a crowded train or tapping someone on the shoulder to get their attention, is generally considered lawful due to implied consent in societal interactions (_Collins v Wilcock_). However, context matters: touching that is more invasive, persistent, or clearly unwanted may exceed ordinary social norms and become unlawful. Lawful justifications include reasonable force used for self-defence, defence of another, or prevention of crime, assessed on the facts and the reasonableness of the force used.

## **Mens Rea of Battery**

The mens rea for battery is intention or recklessness as to the application of unlawful force.

### **Intention**

The defendant intends battery if their aim or purpose is to apply unlawful force to the victim. Direct intention suffices; given recklessness is an alternative, oblique intention analysis is generally unnecessary in battery.

### **Recklessness**

Recklessness in criminal law is assessed subjectively (_R v G_). The defendant is reckless if:

1. They were aware of a risk that their conduct would involve the application of unlawful force to another; and
2. In the circumstances known to them, it was unreasonable for them to take that risk.

> **Key Term: Recklessness (Subjective - Cunningham/R v G)**
> Foresight of a risk that a particular consequence will occur (or that a circumstance exists) and unreasonably going on to take that risk. The focus is on the defendant's actual awareness of the risk.

It is not necessary for the defendant to intend or be reckless as to causing any specific harm or injury; the mens rea relates only to the application of force. If harm is caused, liability may be aggravated to s 47 ABH, but the mental element remains intention or recklessness as to the assault or battery only.

### **Worked Example 1.4**

Anita is waving her arms around enthusiastically while telling a story in a crowded pub. She is aware that people are close by and that she might hit someone, but carries on regardless. Her hand makes contact with Ben's face. Does Anita have the mens rea for battery?

> **Answer:** Yes, most likely. Anita was subjectively aware of the risk of applying force to someone (she knew people were nearby) and it was unreasonable to take that risk in a crowded pub. This satisfies the mens rea requirement of recklessness for battery. It is irrelevant that she did not intend to hit Ben.

### **Worked Example 1.5**

Sam rushes onto a packed train, is jostled, and accidentally brushes against Lee’s arm. Sam did not see Lee and had no awareness of any risk of contact beyond ordinary jostling. Is this battery?

> **Answer:** No. Ordinary jostling in crowded spaces is within implied consent and “generally acceptable standards of conduct.” Sam lacked awareness of a risk of unlawful force and did not act unreasonably. There is no battery.

#### Exam Warning

Do not confuse the mens rea for battery with the mens rea for more serious offences like ABH or GBH. For battery, the defendant only needs to intend or be reckless as to applying unlawful force. They do not need to intend or foresee harm. This is a key distinction often tested in SQE scenarios.

## **Consent**

Consent is not technically a defence, but rather goes to the element of unlawfulness in the actus reus. If the victim gives valid consent to the contact, the force applied is not unlawful, and therefore no battery has occurred.

### **Valid Consent**

For consent to be valid, the victim must have the capacity (age and understanding) and freedom to give consent, and the consent must be genuine (not obtained through fraud or duress). Consent must relate to the nature and quality of the act; deception that goes to those aspects may vitiate consent.

Fraud can vitiate consent if it relates to the identity of the defendant or the nature and quality of the act (_R v Tabassum_). Deceptions about ancillary matters (e.g., motives that do not alter the nature/quality of the touching) may not suffice to negate consent. Capacity can be undermined by temporary or permanent conditions; effective consent requires sufficient understanding and voluntariness.

### **Implied Consent**

As mentioned earlier, people implicitly consent to the ordinary physical contact of everyday life (_Collins v Wilcock_). This includes jostling in crowds or actions within the rules of organised sports. Social conventions (handshakes, brief taps to gain attention) are typically within implied consent unless clearly withdrawn or exceeded. Context is important: a touch acceptable in one setting may be unacceptable in another.

### **Limits of Consent**

While a person can consent to simple assault or battery (contact not causing injury), the law generally does not allow consent to more serious harm (ABH or GBH), unless the activity falls within recognised public policy exceptions. The general rule is that individuals cannot consent to the intentional infliction of actual bodily harm for no good reason. Recognised exceptions include:

- Properly conducted and regulated sports (within the rules and accepted practices).
- Necessary surgical and medical procedures performed appropriately.
- Rough horseplay where genuine consent exists and serious violence is not intended.
- Tattooing and body piercing (within lawful bounds).
- Some dangerous exhibitions or performances with informed consent.

Public policy limits apply. For example, consensual violent sado-masochistic activity intending to cause injury is generally not excused; non-medical body modifications of significant consequence (e.g., ear removal, tongue splitting) fall outside recognised exceptions. The key is whether there is a good reason and whether the harm intended or risked is within an activity the law permits.

### **Worked Example 1.6**

During an amateur rugby match, Jordan tackles Amir within the laws of the game, but Amir’s head hits the ground and he suffers bruising. Can Jordan rely on consent?

> **Answer:** Likely yes. Organised sport carries implied consent to contacts within the rules and accepted practices of the game. Even if injury results, the contact is lawful where properly conducted. Deliberate conduct outside the rules and with intent to injure could negate consent.

### **Worked Example 1.7**

Nina agrees to a “medical breast examination” by Dan, believing he is qualified. Dan is not medically qualified; he misled Nina to obtain consent. Is there a battery?

> **Answer:** Yes. Nina’s consent was vitiated by fraud going to the nature/quality of the act (believing it was a medical examination). The touching is unlawful and constitutes battery, potentially escalating to ABH if injury is caused (_R v Tabassum_).

### **Revision Tip**

> Remember the different levels of harm and consent. Consent is generally a defence to battery (unlawful touching). However, if the defendant intends or causes Actual Bodily Harm (ABH) or Grievous Bodily Harm (GBH), consent is usually NOT a defence, unless the activity falls into a specific exception (e.g., surgery, properly conducted sports).

## **Key Point Checklist**

_This article has covered the following key knowledge points:_

- Battery is the actual infliction of unlawful physical force.
- Assault is causing the apprehension of immediate unlawful physical force.
- Force for battery can be direct or indirect.
- The slightest touch can amount to force.
- Battery can be committed by an omission if there is a duty to act.
- The force must be unlawful (without consent or lawful justification).
- The mens rea is intention or subjective recklessness as to applying unlawful force.
- There is no need to intend or foresee harm for battery.
- Valid consent negates the unlawfulness of the force.
- Consent is generally not a defence to harm amounting to ABH or GBH, subject to public policy exceptions.
- Hostility or injury is not required for battery; contact through clothing or via objects is sufficient if unlawful.
- Everyday jostling and socially acceptable touching are lawful due to implied consent; context determines what is acceptable.
- Battery can occur without any preceding apprehension; a “blow from behind” still constitutes battery.

## **Key Terms and Concepts**

- Force (in Battery)
- Omission
- Unlawful Force
- Recklessness (Subjective - Cunningham/R v G)

Offences against the person - Battery