Offences against the person - Battery

Learning Outcomes

This article explains the key elements constituting the offence of battery in criminal law. It details the necessary components of the actus reus (unlawful application of force) and mens rea (intention or recklessness). After studying this material, you should be able to distinguish battery from assault, understand how force can be applied directly or indirectly, recognise the role of omissions, and analyse the concept of consent in relation to this offence, enabling you to apply these principles to SQE1 assessment questions.

SQE1 Syllabus

For SQE1, you are required to understand the core principles of criminal liability, including the offence of battery. You should be able to identify the elements of the offence and apply them to factual scenarios. Your revision should focus on:

  • 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.

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?
    1. An apprehension of force by the victim.
    2. An intention to cause harm.
    3. The application of unlawful physical force.
    4. Serious injury resulting from the contact.
  2. Can battery be committed by an omission?
    1. Yes, always.
    2. No, battery requires a positive act.
    3. Yes, but only if there is a recognised legal duty to act.
    4. No, unless the omission was intended to cause harm.
  3. What level of mens rea is required for battery?
    1. Intention only.
    2. Recklessness only.
    3. Negligence.
    4. 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). 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.

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.

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.

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).

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.

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).

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

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.

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).

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).

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.

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.

Worked Example 1.3

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.

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).

Fraud can vitiate consent if it relates to the identity of the defendant or the nature and quality of the act (R v Tabassum).

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.

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.

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.

Key Terms and Concepts

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