Assault, Battery and ABH Lecture

1.0 What are non-fatal offences against the person?

Non-fatal offences against the person encompass a range of offences ranging from the apprehension of immediate unlawful force to the infliction of serious injury. Neither assault nor battery requires proof of injury. There is a gradient scale of offences based on the level of harm caused to the victim and the intention or recklessness shown by the defendant. Each of these offences has their own actus reus and mens rea and are accompanied by charging guidelines as to the type of injuries they encompass. All of these elements must be considered when looking at a possible offence.

2.0 Common Assault

Assault and battery are separate offences defined at common law and placed on a statutory footing by s.39 Criminal Justice Act 1988. In day to day speak it is used to refer to the individual offences of both assault and battery.

In legal terms, crimes will often involve an element of both assault and battery but they are not charged together as one offence. Where battery is charged, the charge is assault by beating (DPP v Taylor and Little [1992] QB 645). For the purposes of exams however you will need to understand the constituent elements of and differentiate between both assault and battery.

2.1 Assault

As eluded to above the word assault is used interchangeably to refer to crimes of assault and battery, which are properly known as a common assault. In the present context the word assault refers to what is properly known as a technical assault. No physical contact is necessary.

2.1.1 Actus Reus

The actus reus of assault is causing a person to apprehend the immediate application of unlawful force.

This can be broken down into two key parts:

• The defendant causes victim to apprehend the use of force against them, and;
• The victim apprehends that use of force will be immediate

(i) The defendant causes the victim to apprehend force

The actus reus is established through the causing of the apprehension of force and there does not need to be any application of actual force on the victim.

It does not matter whether the actual application of force was even possible, as long as the apprehension is caused. To illustrate this, consider the following example. The defendant points an unloaded gun at a stranger in a street. There is no way he could shoot them even if that was his intention but the stranger will be unaware of this so will fear the application of force. Now consider that the defendant and his friend are shooting enthusiasts and are in a gun shop looking at unloaded display models. If the defendant picked up a gun and turned and pointed it at his friend and shouted ‘hands up or I’ll shoot’ the defendant’s friend will know that this is an empty threat and will not be caused to apprehend a use of force, thus no assault will occur.

R v Constanza [1997] Crim LR 576 states that words alone can cause the victim to apprehend immediate unlawful force and thus constitute an assault. For example, “I’m going to hit you” does not need to be accompanied by any action for an assault to occur. The ruling in R v Ireland [1997] 3 WLR 534 takes this further and states that silence can amount to an assault. In this case the defendant made a series of silent phone calls to three women causing them to fear immediate force and leading them to suffer severe psychological damage as a result of his on-going calls.

Just as words can cause an assault they can also prevent a potential assault from occurring. This point is demonstrated nicely in the case of Tuberville v Savage [1669] EWHC KB J25.

Case in focus: Tuberville v Savage [1669] EWHC KB J25

Having been infuriated by some comments directed towards him, Tuberville placed his hand on his sword as if to draw it. This might cause another person to apprehend the immediate application of unlawful force and thus constitute an assault. However, Tuberville accompanied his action with the words “If it were not assize-time, I would not take such language from you.” In modern day context, this meant that as the judges were in town he would not commit an act of violence, thus negating the effect of this threatening action.

Just as words can negate an assault, the context and tone of such words can too negate an assault. In cases where menacing words were clearly intended as a joke and were taken as such there can be no assault. The importance of context is illustrated by Chambers v DPP [2012] EWHC 2157 (Admin). The defendant joked on Twitter about blowing up an airport after it closed because of snow. The court quashed his conviction for sending a menacing communication under section 127 of the Communications Act 2003. It was not a prosecution for assault.

It is important to note the distinction between apprehension and fear. A victim may expect immediate force without being in fear of it; an assault will occur either way. For example, a world heavy weight boxer may be confronted by a particularly angry ex-girlfriend who raises her hand to slap him. He quite rightly at this point expects the immediate application of force, however it would be quite wrong to say that he is in fear of it!

(ii) The victim apprehends that use of force will be immediate

It most cases this is a simple point to establish, a defendant shakes his fist, the victim fears he will be hit in a matter of seconds. However, some cases have been met with contentious rulings in relation to this issue. There is not an exact definition of what ‘immediate’ has come to mean but the following case examples provide some insight.

In Smith v Superintendent of Woking Police [1983] Crim LR 323, the defendant stood up next to the window of a ground floor flat belonging to a woman living alone. She was terrified as he just stood there staring at her through the window.  At trial the defendant argued there was no assault as the force apprehended was not immediate. He was outside and could not get to her without making his way inside. The Court held that despite this, the victim was clearly afraid by the prospect of some immediate violence. It was unnecessary for the prosecution to establish exactly what the victim feared would happen as a general apprehension was sufficient.

Ireland established that a silent telephone call can cause the victim to apprehend immediate violence, for example if they think the caller might be just outside. It was not necessary to prove physical proximity.

The point that can seemingly be taken from the presiding case law is that, uncertainty about precisely what will happen does not prevent an assault, provided the victim apprehends the possibility of immediate unlawful force. If some other factor came into play, for example a silent phone call was received and the number appeared with an Australian dialling code, this may negate this.

In the same sense that words can negate an assault, they can also negate immediacy. For example, “I’ll get you next week for this” would not be an assault as there is no immediate force threatened.

2.1.2 Mens Rea

The mens rea for assault is intending to cause the victim to apprehend immediate unlawful force, or being aware of the risk of causing that apprehension and unreasonably taking it. This involves an element of subjective recklessness as was confirmed in the case of Savage and Parmenter [1992] 1 AC 699, meaning the defendant themselves must have realised the risk of causing an apprehension of violence.

2.1.3 Type of Harm

No harm needs to occur for a technical assault conviction.

2.2 Battery

If an assault is understood to be an apprehension of force, a battery can be explained in simplistic terms as the actual use of unlawful force.

2.2.1 Actus Reus

The actus reus of this offence is the application of unlawful force on another. This application is usually direct, for example, the defendant punches the victim, thus the defendant himself physically applies the force to the victim’s body. However, this does not need to be the case and force can also be applied indirectly.

On a basic level this can involve applying force through another medium. For example, consider the case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, where the defendant accidentally drove onto a police officer’s foot. Once he realised what had happened, he deliberately kept the wheel there. The application of force was a continuing act and the necessary intention was present while it continued.

On a more indirect level, this can also involve application of force to one person which causes the application to another.  Imagine a domino effect. A person, shopping in Tesco, becomes frustrated at the length of the queue so pushes the person in front of him forward, who then falls into the person in front of them and so forth, until all 3 people in the queue have fallen over.  The defendant, despite applying force to only one person in the queue, can be guilty of battery against each person to whom he intentionally or recklessly applies force, directly or indirectly. This point was demonstrated in Haystead v DPP [2000] 3 All ER 690 where the defendant who punched a woman holding a baby, causing her to drop the baby, was found guilty of the battery to the baby.

The force applied does not have to be direct to the victim’s body and they do not need to feel the force. R v Thomas [1985] Crim LR 677 confirmed that touching clothes they are wearing can be sufficient.

A battery can also be committed where the behaviour was intended as affectionate, as was confirmed in R v B [2013] EWCA Crim 3. An unwanted kiss for example would suffice and the fact that it was motivated by misdirected affection will not prevent it from satisfying the actus reus of battery..

2.2.2 Mens Rea

The mens rea for battery involves either intention or recklessness as to the application of force. Being reckless as to applying force can be a difficult concept, however as a basic example, consider a person is in an enclosed space and swinging their arms around wildly. They may not intend to apply force but they are reckless if they recognise the risk of hitting someone and unreasonably take that risk.

2.3 Charging and Sentencing

Assault and battery are summary offences normally tried in the magistrates’ court. A related count may be tried with an indictable offence under section 40 of the Criminal Justice Act 1988. Section 39 sets the maximum at six months’ imprisonment, a fine or both. Proceedings normally have to begin within six months of the offence. Where the conduct amounts to domestic abuse, section 39A allows six months from the first qualifying witness statement or recorded interview, subject to a limit of two years from the offence.

The CPS Charging Standard indicates that grazes, superficial cuts and minor bruises will usually justify a charge of common assault or battery. The circumstances of the assault and the seriousness of the injury both matter. Racially or religiously aggravated common assault and assault on an emergency worker exercising their functions are separate either-way offences carrying up to two years on indictment (Crime and Disorder Act 1998, section 29; Assaults on Emergency Workers (Offences) Act 2018, section 1).

3.0 Assault Occasioning Actual Bodily Harm

This offence encompasses those assaults where a more serious injury is caused to the victim. Liability for the offence is constructed from liability for the lesser offence of common assault. It is a result crime in that the charge requires a result induced by the assault; it must result in actual bodily harm.

3.1 Actus Reus

The actus reus of this offence consists of two parts:

1. The defendant must commit an assault.
2. The assault must cause actual bodily harm.

(1) The defendant must commit an assault

For the purposes of this offence the term assault is properly taken to mean either an assault or a battery. Therefore, the actus reus and mens rea for either of these qualifying offences must be established. No additional mens rea is required.

(2) The assault must cause actual bodily harm

This refers to causation. Applying the usual principles of causation, it must be established that the defendant’s assault caused the victim to suffer actual bodily harm.

Actual bodily harm is defined in R v Donovan [1934] 2 KB 498 as an injury that is more than transient or trifling. R v Miller [1954] 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 [1994] 1 WLR 689 qualified this somewhat stating that the inclusion of the word ‘actual’ indicates that the injury whilst not needing to be permanent, cannot be so trivial so as to be wholly insignificant. For example, a concussion will not usually cause permanent damage but it is clearly more than insignificant harm. Conversely, momentary soreness in an arm without more is unlikely to qualify.

Ireland established that ABH can encompass a recognised psychiatric illness such as clinical depression, however Chan Fook has clarified that this does not go as far as including distressing emotions or any state of mind which does not amount to a recognised clinical condition. It can be seen then that fear or upset would not suffice for the purposes of ABH.

Aside from the established case law, the CPS Charging Guidelines also offer some direction as to what will be classed as ABH. Examples include extensive bruising, a damaged tooth, a cut requiring stitches or a loss of consciousness. Significant treatment or lasting injury is not essential.

3.2 Mens Rea

No additional mens rea is required for this offence. R v Roberts [1978] Crim LR 44 confirms that the mens rea for the basic offence is sufficient. The House of Lords confirmed in R v Savage; R v Parmenter [1992] 1 AC 699 that the defendant need not intend or foresee actual bodily harm.

3.3 Charging and Sentencing

The offence of assault occasioning actual bodily harm is charged under s47 of the Offences Against the Person Act 1861.

The maximum sentence on indictment is five years’ imprisonment. The separate racially or religiously aggravated offence carries a maximum of seven years (Crime and Disorder Act 1998, section 29).

It is a triable either way offence so can be heard in the magistrates’ court or the Crown Court, depending on the perceived seriousness of the offence and the defendant’s wishes.

4.0 Defences

Consent

Consent may operate as a defence to a charge of assault, battery or the causing of actual bodily harm. Reasonable force used in self-defence or defence of another can also be lawful. The question is whether the force was reasonable in the circumstances as the defendant honestly believed them to be (Criminal Justice and Immigration Act 2008, section 76). In England the defence of reasonable punishment of a child is unavailable for ABH or more serious injury (Children Act 2004, section 58). In Wales the defence has been abolished altogether.

Without the consent defence it would be impossible for anyone to go about their day to day lives without finding themselves in a police station! Consider the London Underground in the height of rush hour. If we did not consent to some level of contact with our co-citizens then multiple assaults and batteries would occur on the daily commute to work. A person who deliberately pushes through the crowd applies force, but ordinary jostling on a crowded platform is generally accepted. A purely accidental collision lacks the mental element of battery. Brushing past someone in the supermarket would be illegal and tapping someone on the shoulder to get their attention could land you in serious trouble! Thanks to Collins v Wilcock [1984] 3 All ER 374 this not the case as it established that all impliedly consent to some level of physical contact in day to day life. Without this it would be very difficult to have a functioning society.

It is evident from the scenarios above that none of these involve a serious infliction of harm and are limited to situations that would, in absence of consent, realistically be charged as a common assault. Consent becomes a more contentious issue in situations where more serious harm is caused as the law places limits to the level of harm an individual is entitled to consent to.

To gain a better understanding of this the requirements for valid consent must be considered.

4.1 Consent can be given expressly or impliedly

Collins v Wilcock establishes that ordinary contact is generally accepted where there is jostling in busy places, or in relation to handshakes, back slapping, tapping on the shoulder to attract attention and other day to day activities, provided no more force was used than is reasonably necessary in the circumstances. Consent can be implied in other situations too. For example, your conduct may indicate consent to affectionate touching. Being in a relationship is not itself consent.

4.2 Genuine Consent?

For consent to be genuine it must be freely given by a person with capacity for the decision. The effect of a deception depends on what the person was deceived about.

Children are not automatically held to give valid consent in all situations and are subject to further scrutinisation in this regard. For example, for a child under 16 considering medical treatment, the Gillick competence test set out in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 asks whether the child has sufficient understanding and intelligence to understand the proposed treatment. A 16- or 17-year-old can generally consent to treatment under section 8 of the Family Law Reform Act 1969.

Some adults may also lack capacity to give valid consent. Under the Mental Capacity Act 2005 there is a presumption of capacity but a person will be found to lack this if at the material time they are unable to make a decision in relation to the act due to a temporary or permanent impairment or disturbance of mental functioning. They must be supported to decide where practicable. Inability to understand, retain, use or weigh the relevant information, or to communicate a decision, can establish inability to decide (sections 1 to 3).

Even where the subject has capacity to consent this consent can be vitiated by fraud as to the (i) identity of the person or (ii) the nature and quality of the act.

(i) fraud as to the identity of the person

R v Elbekkay [1995] Crim LR 163 confirms that fraud as to the identity of the person will vitiate consent, however it must be the identity of the person that is the subject of the fraud, not the identity of their attributes. This was demonstrated in R v Richardson [1998] 2 Cr App R 200.

Case in focus: R v Richardson [1998] 2 Cr App R 200

A qualified dentist performed procedures on patients while her registration was suspended. The patients stated that they would not have consented to the dental work had they known this, however the Court held that the patients had consented to the treatment as there had been no fraud as to the actual identity of the person performing the treatment. They knew exactly who she was. The only fraud was to the defendant’s right to practice dentistry.

(ii) Fraud as to the nature and quality of the act

The seemingly harsh ruling in Richardson will only extend as far as the fraud as to the qualifications has no bearing on the nature and quality of the act carried out. This is where the fraud leads the person to believe that the act is being carried out is one thing when it is in fact something entirely different.

In R v Tabassum [2000] 2 Cr App R 328 a case of similar facts to Richardson in that it involved false medical qualifications, the defendant purported to be conducting a breast cancer survey and obtained agreement to breast examinations on that basis. He was in fact an IT lecturer who held no formal medical qualifications. The Court held that there was no true consent in this instance. The women were consenting to touching purely for medical purposes and therefore although they had consent to the nature of the act, i.e. the breast examination, they were not consenting to the quality of the act as it was not conducted for medical purposes.

The case of R v Flattery (1877) 2 QBD 410 illustrates the concept of fraud as to the nature and quality of the act more clearly. In this case defendant told a woman with learning difficulties that he was performing surgery on her when in fact he was engaging in sexual intercourse with her. Accordingly, the victim did not appreciate the nature of the act she was agreeing to and the Court held her consent to be invalid. These sexual offence cases predate the Sexual Offences Act 2003. For offences to which section 76 applies, intentional deception about the nature or purpose of the act, or intentional impersonation of someone the complainant knows personally to obtain consent, gives rise to conclusive presumptions of no consent and no belief in consent.

Originally the courts were reluctant to find consent was invalidated where there was fraud as to the quality of the act in cases where the victim had consented to the act, but in doing so are subjected to a consequence they were not aware of when providing consent. For example, in the case of R v Clarence (1888) 22 QBD 23,the defendant had sexual intercourse with his wife knowing that he was infected with gonorrhoea. He passed on the infection and his convictions under sections 20 and 47 of the 1861 Act were quashed. The decision reflected views then held about assault and marriage. There is no marital exemption from rape (R v R [1992] 1 AC 599), and Clarence is not authority against a prosecution for recklessly transmitting a serious infection.

Consent to sexual intercourse and consent to the risk of serious infection are separate questions. In R v Dica [2004] 3 All ER 593 the defendant, knowing he had HIV, had sexual intercourse with two women who contracted it. The Court of Appeal held that reckless transmission could amount to grievous bodily harm under section 20 of the 1861 Act, but that a partner could give informed consent to the risk. Consent to unprotected sex did not by itself establish such consent. This was confirmed in the subsequent ruling of R v Konzani [2005] EWCA Crim 706.

Is the victim legally allowed to consent?

In what appears to be a large restriction on individual autonomy, the very concept that consent is designed to protect, the law restricts the extent to which an individual can consent to the infliction of injury. This is due to the fact that it is not considered to be in the public interest to allow individuals to hurt each other. Consider the implications allowing individuals to freely do this would have on general public morals, let alone the cost to the NHS in treating any injuries caused! Accordingly, in cases where ABH or more serious harm is intended and or caused Attorney General's Reference No 6 of 1980 [1981] QB 715 establishes that consent to a fight is no defence where bodily harm is intended or caused without a legally recognised justification.

If this were to be a blanket ruling it is evident that a number of activities fundamental to modern day life would be rendered illegal. Accordingly, the Court in Attorney General’s Reference No 6 and R v Brown [1994] 1 AC 212 provide some caveats to this, giving specific categories of scenarios where it is in the public interest to allow individuals to consent to such harm. These are now set out and explained.

Reasonable surgical interference

Surgical interference is invasive and will almost always involve an incision thus constituting harm to the body. Regardless, the law permits for a patient to consent to surgery performed by a suitably qualified doctor as there is clear social benefit in such operations.

Properly conducted games and sports

Properly conducted games and sports played according to recognised rules including informal games without a referee or umpire are considered to be in the public interest due to the massively important cultural standing these sports have, alongside the obvious health and fitness benefits that they offer. It is in the interest of society to allow for these to continue and thus to consent to the obvious risk of harm they will often involve. However, that has been extended further to encompass harm caused during off the ball play, that is in relation to harmful behaviour that occurs on the pitch but outside of both play itself and the rules of the game. The case of R v Barnes [2004] EWCA Crim 3246 which involved an allegation of an unnecessary late tackle during a football match, stated that even conduct outside of the rules of the game may not be criminal. The Court held that an instinctive error, reaction or misjudgment in the heat of a game should not be classed as criminal activity merely because it broke the rules. Relevant factors include the sport and level of play, the nature of the act, the force used, the risk of injury and the defendant’s state of mind.

Tattooing, piercing and male circumcision

These are seen as in the public interest due to their cultural importance and long standing tradition. Branding with a hot knife at a wife’s request was treated as analogous to tattooing on the particular facts of R v Wilson (1996) 2 Cr App Rep 241. In R v Hobday [2025] EWCA Crim 46, cutting an initial into the skin with a knife did not fall within that exception. Nor does consent justify procedures such as tongue-splitting by a body-modification practitioner (R v BM [2018] EWCA Crim 560). Tattooing a person under 18 is generally prohibited except for medical reasons (Tattooing of Minors Act 1969, section 1). In Wales, intimate piercing of under-18s is also prohibited except in the course of specified medical procedures (Public Health (Wales) Act 2017, section 95).

Horseplay

This includes for example rough behaviour in jest such as, tripping each other up or tussling between friends, can be consented to. An example of such behaviour can be seen in R v Jones [1987] Crim LR 123 where schoolboys were seriously injured after being thrown into the air by fellow students. The jury should have been allowed to consider whether the injured boys consented to the horseplay or the defendants honestly believed that they did.

Sexual Relations

In Wilson the Court treated the branding as personal adornment. It did not create a general exception for conduct in private. In Brown, consent was no defence to the infliction of actual bodily harm or more serious injury in the course of sadomasochistic activity. Section 71 of the Domestic Abuse Act 2021 now provides that, for an offence under section 18, 20 or 47 of the 1861 Act, consent to the infliction of such harm for sexual gratification is no defence, whoever seeks the gratification. It does not require a domestic relationship.

Section 71 preserves the position in Dica for sections 20 and 47 where the harm is a sexually transmitted infection and the partner consented to the sexual activity knowing or believing that the defendant had the infection. Accidental injury during otherwise lawful, consensual sex raises a different issue, illustrated by R v Slingsby [1995] Crim L R 570 where during sexual intercourse the defendant, with the victim’s consent, vigorously inserted his fingers into the victim’s vagina whilst wearing a large signet ring. The ring caused severe internal cuts which became septic and ultimately proved fatal. There was no underlying unlawful assault on which to base manslaughter: the touching was consensual and the injury unintended and unforeseen.

Hands on Example

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.

Guideline Answer

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? In Tuberville v Savage [1669] EWHC KB J25 the words ruled out violence at that moment. Tim’s words threaten to use force immediately if Jack speaks again. A conditional threat can be an assault (Read v Coker (1853) 13 CB 850). Jack’s reaction supports an inference that he expected immediate violence, and Tim’s raised fist and warning support an intention to cause that apprehension.
• 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 [1969] 1 QB 439 and Haystead v DPP [2000] 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 [1934] 2 KB 498). R v Miller [1954] 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 vChan Fook [1994] 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

• Assault:
  • Actus reus: Did Tim cause Louis to apprehend the immediate application of force? This depends on whether Louis saw Tim coming and expected immediate unlawful force. The facts do not say that he did.
  • Mens rea: Mistiming the tackle does not by itself show that Tim intended Louis to apprehend immediate force or consciously took that risk.
• Battery:
  • Actus reus: The unlawful application of force. Tim applied force to Louis. Whether it was unlawful depends on whether the tackle exceeded what participants in this game could reasonably be taken to accept.
  • Mens rea: Did Tim intend the contact or recognise and unreasonably take the risk of it? A mistake in timing does not alone establish recklessness.
• ABH:
  • The tackle causes Louis to sprain his ankle. If the injury is more than transient or trifling, it falls within the Miller and Chan Fook definitions of actual bodily harm.
  • There is no additional mens rea requirement for ABH. If Tim committed a battery and it caused actual bodily harm to Louis, the elements of section 47 are made out.
  • 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 [1981] where ABH or more serious harm is intended and or caused a person's consent is irrelevant. If the sprain amounts to ABH, consider the sporting exception. However,Attorney General’s Reference No 6 of 1980 and R v Brown [1994] 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. Tim mistimed a tackle while trying to win the ball. The facts do not say it was off the ball. However, R v Barnes [2004] EWCA Crim 3246 states that an instinctive error, reaction or misjudgment in the heat of a game should not be classed as criminal activity. Applying this to the facts an error in trying to win the ball is likely to be within the risks accepted by players. If the force and risk took the challenge well beyond what could reasonably be expected in the game, a jury could reach a different conclusion.

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