Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by resorting to some form of physical violence.
Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: –
“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”.
The mens rea (mental element) for battery is as follows: –
- An intention to apply unlawful physical force or
- Reckless as to whether such force is applied or not.
In R v Parmenter (1991) the defendant was convicted on four counts of causing grievous bodily harm to his infant son. The types of injuries included bruises, broken bones and aberrations. The judge directed the jury to convict under s.20 of the Offences Against Person Act (1861) if they believed that the defendant ought to be aware (objective) or should be aware that his actions would cause his infant son some form of injury. The jury convicted, and the defendant appealed on the grounds that in order to convict under s.20 the defendant must have foresight of the consequences (subjective) or must be aware that his actions would harm his son (subjective).
The defendant’s argument was that he did not know that the manner in which he handled his son would cause him physical injury or was unable to appreciate that his manner of handling his son would cause him physical injury.
The court held that the test to convict under s. 20 of the Offences Against the Person Act (1861) was subjective i.e. the defendant must be able to foresee the consequences of his actions and substituted the conviction for a conviction under s. 47 of the Offences Against Person Act 1861 (a lesser offence) where it sufficed that the defendant foresaw or could anticipate some form of harm.
In R v Savage (1991) the defendant threw a glass of beer at her husband’s ex-girlfriend, but the glass slipped from her hand and resulted in serious injury to the victim. The defendant was tried and convicted for maliciously causing grievous bodily harm to another under s.20 of the Offences Against the Person Act (1861). The defendant appealed on the grounds that the word malicious required intent and the defendant had not intended to cause the victim the kind of harm or injury that resulted from her actions.
The trial judge had failed to inform the jury that the test to convict under s20. of the Offences Against the Person Act (1861) was subjective and the jury had to establish intent before it could convict under s20. However, given the facts it was possible to convict under s.47 of the Offences Against the Person Act (1861), if the defendant could foresee that some harm would result from her actions albeit not the exact type of harm or injury that resulted. The matter was referred to the House of Lords.
The matter before the House of Lords was whether: –
It was possible to substitute a s.20 conviction for a s.47 conviction when there was no intent, or the subjective test was not satisfied? The answer is yes, and it is possible to substitute a s.20 conviction with a s.47 conviction on a count of causing grievous bodily harm (GBH) when the element of intent cannot be satisfied.
A conviction under s.47 simply required Actual Bodily Harm (ABH) i.e. minor injuries, bruises, cuts and wounds and proof of an assault. Silence can constitute an assault see R v Ireland (1997) and recognized psychiatric illnesses are also classed or categorized as physical injury see R v Ireland and Burstow (1997).
In order to convict under s.20 the defendant must foresee the consequences of his or her actions regardless of the severity of the harm or injury that resulted.
Before a court can convict for battery it has to establish three elements. They are as follows: –
- Force was applied
- The force was unlawful
- It was physical (psychiatric illnesses are classed as assaults see R v Ireland (1997))
Application of physical force
In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.
In this instance, the defendant committed the unlawful act by moving his car on to the police officer’s foot, he applied force by not removing the car when directed to do so by the police officer and the type of force that was used was physical.
The force that is used however need not be directly applied. In DPP v K (a minor) (1990) a schoolboy stole some hydrochloric acid from the science room and placed it in the hand dryer in the boys’ toilet. The nozzle was pointing upwards and when the next boy came to use the hand dryer the acid squirted on to his face and caused permanent scaring.
The boy was found guilty and it was held that the force that was used need not be directly applied.
The force must be unlawful
The act must be unlawful i.e. the act must be in breach of either common law or statute but if the defendant has reasonable excuse to use force than the act will not be construed as unlawful. A defendant has a valid excuse to use force: –
When he or she is trying to defend himself or herself. At common law anyone is allowed to use reasonable force to protect himself or herself.
In R v Scarlett (1994) the defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed.
The appeal was allowed and the conviction was quashed. There was no evidence to indicate that the defendant had used excessive force.
“They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable.”
When the defendant is trying to prevent a crime as per s. 3 (1) of the Criminal Law Act 1967. The section reads as follows: –
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.
Can there be consent to battery? The answer in short is yes. In Collins v Wilcock (1984) a police constable tried to arrest a woman as per s. 1 (3) of the Street Offences Act (1959) which reads as follows: –
“A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section”.
The woman tried to walk away, and the police officer tried to stop her by grabbing her hand. The woman struggled to free herself and in doing so scratched the police officer. The woman was charged with assaulting a police officer.
It was held that the police officer’s actions amounted to battery. He had no power to arrest the woman and her actions were in self-defense.
The court took the opportunity to elaborate on the offence of battery. Battery can be defined as the offence of making physical contact with someone i.e. touching, pulling, elbowing, grabbing etc. without their consent.
However, the courts accept that in the course of everyday life, it is inevitable that people will make some sort of contact with each other for example when they are walking around in a crowd and under such circumstances or in those situations it is deemed that there is implied consent and such physical contact is not actionable. In other words, in these instances there is consent to battery.
The offence of battery per se is the offence of making some sort of physical contact that is not reasonable or does not fall within the scope of generally acceptable codes of conduct. What is acceptable or otherwise depends on the facts of each case.
Police officers are allowed to make contact with others in the course of their duty and not all physical contact made by a police officer will amount to battery. In Donnelly v Jackman (1970) a police officer tapped the defendant on the shoulder to bring his attention to something and the defendant turned around and assaulted the police officer.
The defendant was charged with assaulting a police officer in the course of his duty and the defendant countered by alleging that the police officer’s actions amounted to battery. The court decided that the police officer’s actions did not amount to battery.
Some leeway must be given to police officers to enable them to do their job or to carry out their duties effectively. That scope however is quite narrow.
Physical force or the application of physical force.
In order to be convicted for battery the defendant must have applied some sort of physical force that is unreasonable under the circumstances and does not fall under the scope of acceptable codes of conduct. That physical force however need not be severe and mere touching could amount to battery.
In Faulkner v Talbot (1981) it was held that battery includes the intentional or reckless touching of someone without the consent of that person or without lawful excuse and the act need not be hostile.
The decision in Faulkner v Talbot (1981) however must be compared with the decision in Wilson v Pringle (1986) when one schoolboy sued another for injuries sustained while fooling around in the school corridor. It was decided that in order for the actions of the defendant to amount to battery the act must be hostile.
In short it would be safe to say, as per Collins v Wilcock (1984), that what amounts to battery or otherwise depends on the facts of each case.
Copyright © 2019 by Dyarne Jessica Ward