4.1.3 Assault, Battery and ABH Lecture – Hands on Examples
The following scenario aims to test your knowledge of this topic and your ability to apply what you have just learned in a real life setting.
Have a look at the following passage and try to pull out the material facts and legal issues. Highlight these as you go through and jot down any key points, ideas, or relevant law that come to mind. If you’re feeling confident then once you have done this you can have a go at producing an answer.
If you’re not ready to go it alone just yet, there’s no need to panic! Answering these questions takes a lot of practice and if this is the first time you have done it then it is going to be tricky. A guideline answer is provided below, outlining the key points you would need to address. Have a look at this and try and use it to help you produce your own answer, or to check the answer you have already produced.
Tim is really passionate about football and he loves everything to do with it. At work Tim and his colleagues have a fantasy football league and this gets very competitive. A lot of the time they will discuss the league together and argue over who has the best fantasy team each week. Tim goes to work on Monday morning furious as his his team has not done very well that week. Jack infuriates Tim by bragging loudly to Josh about how many points his team scored him that week. After sometime Tim turns around and raises his fist at Jack shouting, “if you say one more thing about this I will shut you up myself”.
Jack is afraid by this and says nothing, quietly resuming work. Josh however is annoyed at Tim for threatening his friend. As he is walking past Tim’s chair he pushes the back of the chair hard causing Tim to fall forward and hit his head. Tim is shaken by the shock of the push but luckily is not seriously hurt.
After work, Tim, Jack and Josh have planned to compete in the 5-aside football league they play in. Sophie, a girl that both Tim and Josh like, is going along to watch the game. Still annoyed at Josh for pushing him, Tim is really eager to out-do Josh in front of Sophie as he knows this will upset him. In the last few moments of the game the score is 0-0 and Tim spots an opportunity to win the ball just outside the penalty box of the other team. Fired up and keen to impress, Tim flies in for the tackle but in the heat of the moment horribly mistimes it. His boot crashes into Louis’ shin and sprains Louis’ankle.
Discuss the potential liability Tim and Josh for assault, battery and ABH in relation to the above scenario.
There are three issues at hand here:
(i) Tim’s threat to Jack
(ii) Josh pushing Tim
(iii) Tim tackling Louis
Once you have identified all three you need to break your answer down into subheadings and discuss each issue individually.
(i) Tim’s threat to Jack
- Consider first a possible offence of assault.
- Actus reus: Does Tim cause Jack to apprehend the application of force? Raising his fist would cause a person to apprehend an immediate application of force
- Is this apprehension of immediate force? No, similarly to Tuberville v Savage  EWHC KB J25, the accompanying words “if you say one more thing” negate the assault as there is no immediacy. He will only be harmed in circumstances where he continues to speak and not right away.
- There is no application of force as Tim does not carry out his threat so there is no battery.
(ii) Josh pushing Tim
- First consider the possibility of an assault occurring. Does Josh cause Tim to apprehend the application of immediate unlawful force? A careful study of the facts shows us that he didn’t. Josh went up behind and there was no prior threat issued so Tim was not aware that the force was about to be applied. Accordingly, he was unable to apprehend the application of force so there can be no assault.
- Having established assess whether on the facts there can be a battery?
- Actus reus: Does Josh apply unlawful force to Tim?
- Applying Fagan v Metropolitan Police Commissioner  1 QB 439 and Haystead v DPP  3 All ER 690 it can be seen that the application of force can be indirect, therefore the push on the chair would suffice for the purposes of battery. The battery occurs when the chair causes Tim to fall forward and hit his head.
- Mens rea: Intention to apply force or recklessness as to whether force will be applied. It can be seen on the facts that Josh likely intended to apply the force to Tim when pushing the chair but in any case he was reckless as to whether pushing the chair would cause the application of force to Tim.
- Therefore, both elements of the offence are established and Josh will be liable for the battery on Tim.
- Possible s47 ABH liability? Actual bodily harm means an injury that is more than transient or trifling (R v Donovan  2 KB 498). R v Miller  2 All ER 529 clarified this further stating it to be any hurt or injury calculated to interfere with the health and comfort of the victim. However, R v Chan Fook  1 WLR 689 it was clarified that thiscannot be so trivial so as to be wholly insignificant. It is unlikely that contact to the head that causes no further damage would fulfil these definitions so no charge of ABH would be available in relation to Josh’s push.
(iii) Tim tackling Louis
- Actus reus: Did Tim cause Louis to apprehend the immediate application of force? This is likely where Louis saw Tim approaching him late and off the ball, however this is open to an interpretation of the facts and you should come to your own conclusion here.
- Mens rea: Tim was subjectively reckless as to causing the apprehension when mistiming his tackle.
- Actus reus: The unlawful application of force. This is satisfied as Tim’s tackle is late and off the ball and therefore outside the rules of the game.
- Mens rea: Tim is reckless as to whether force will be applied when going in for the late challenge.
- The battery causes Louis to break his leg which is harm of a nature that is clearly encompassed by both the Miller and Chan Fook definitions and also the CPS charging guidelines.
- There is no additional mens rea requirement for the ABH so having satisfied the actus reus and mens rea for battery and the actus reus for ABH it is likely that Tim would be liable for the ABH of Louis.
- However, if it can be found Louis consented to the harm this will negate the offence. Applying Attorney General’s Reference No 6 of 1980  where ABH or more serious harm is intended and or caused a person's consent is irrelevant. As ABH was caused here then any consent by Louis would be prima facie invalid. However,Attorney General’s Reference No 6 of 1980 and R v Brown  1 AC 212 provide exceptions to this where it may be in the public interest to allow consent. The appropriate exception here is for the provision of properly conducted sports.
- What is properly conducted? This refers to a sport played according to recognised rules. As Tim’s tackle was late and off the ball it cannot be said to be within the rules of the game. However,R v Barnes  EWCA Crim 3246states that an instinctive error, reaction or misjudgment in the heat of a game should not be classed as criminal activity. Applying this to the present facts it would appear that Tim’s conduct falls with this definition as it was a misjudged error in the heat of the game, therefore Louis’ would be held to consent to the harm and Tim will have no liability for the incident.
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