Section 39 – Common Assault

Section 39 – Common Assault

Assault charges are surrounded by ambiguity, the common confusion between assault and battery offences means that Defendants don’t often fully understand the details of the offence that they’ve been charged with; something which is key to them understanding their trial and possible sentencing.
Section 39 of the Criminal Justice Act 1988 covers assault and battery offences. They are less serious than Actual Bodily Harm (Section 47 of the Offences Against the Person Act 1861) and are summary offences which can only be tried in the Magistrates Court. The maximum punishment is 6 months imprisonment. In some instances, assault and battery offences can be tried in the Crown Court but only if they are an additional charge to an indictable offence.
For all other levels of assault and battey offences, ranging from a few cuts and grazes to serious wounding, visit our assault and battery allegations page here. You can also contact one of our friendly team for expert legal advice specific to your individual case, call us on 01244 344299 or email

Common assault

An assault takes place when the Defendant causes the victim to apprehend the use of immediate, unlawful physical violence upon them. In a common assault charge, no physical violence needs to follow the threat; just the fear experienced by the victim is inclusive of this charge. If physical violence does occur immediately after an assault, the Defendant will also be charged with a battery offence.
The Mens Rea (guilty mind) of a common assault is that the Defendant either intentionally or recklessly causes the victim to fear some degree of contact or violence. In the case R v. Ireland it was determined that a common assault can occur without verbal warning or action. Several silent phone calls made to the victim, which caused them to fear violence in the immediate future, constituted an assault offence.

Battery Offences

A battery offence is what usually (but not always) follows an assault. The term “battery” describes the use of violence which immediately follows a threat made to the victim. In order to be charged with a battery offence, the Defendant must have applied unlawful force which is more than everyday physical contact (like bumping shoulders in a crowded place) but visible injuries aren’t necessary for this offence. In the case R v. Thomas the Defendant touched the hem of a female’s skirt, this constituted a battery offence because the touching of the skirt was likened to indecently touching a female.
Battery offences can also involve indirect contact i.e. the Defendant doesn’t have to physically touch the victim. This is demonstrated in the case DPP v. K where the Defendant placed acid in a hand drier in a public bathroom so that the next person who used it would be sprayed with the acid. Although there was no direct contact between the victim and the Defendant, the injury the victim sustained as a result of the acid was enough to constitute a battery offence.
The Mens Rea of a battery offence is applying unlawful force to the victim either intentionally or recklessly. An example of recklessness which would constitute a battery offence is demonstrated in the case DPP v. Santana-Bermudez, where a policewoman was searching the Defendant’s clothing and asked him if he had any sharp objects on his person. The Defendant failed to disclose that he was carrying a needle and as a result, the policewoman sustained an injury from the needle. Although the Defendant didn’t intend to cause physical harm to the victim, he caused the injury through recklessness.
Here at Gray and Co Solicitors we’re on hand to help you understand any criminal offence you have been charged with. If you require any more information or legal representation concerning assault and battery offences call one of our legal team now for helpful and friendly advice from experienced solicitors.