Assaults are very common but every case is different and needs careful consideration, especially in relation to self defence.
Get the advice you need to protect yourself, your family, your home, your job, your liberty.
Assaults are especially common and range in seriousness from common assault to ABH and GBH. If assaults occur in the context of a domestic relationships it makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship.
A mere allegation of assault can be enough to result in arrest or a voluntary interview, which can lead to restrictive bail conditions, a charge and a court case.
Police investigations and Court hearings can have a dramatic impact on day to day living. Any caution or conviction can affect employment as it would remain on the police national computer and may be disclosed on a DBS check.
Loopholes to consider
Below I have outlined this area of law and defences.
Loopholes are legitimate lines of defence that take into account all the small areas of law.
Loophole defences that may be appropriate to assault may include:
Can you properly be identified as involved in the incident?
Can you demonstrate that you were acting in self defence or defence of another person?
Can you demonstrate that the force used was reasonable in all the circumstances?
Do you have witnesses to help prove your account?
Do you have other evidence to help prove your account?
Is it likely the complainant will come to court to give evidence against you?
Is the incident within time for a summary offence to be proceeded with?
Common Assault explained
Common assault is the lowest and most common type of assault. It can be a push, slap, punch, hair pulling, kick or spit and does not have to result in any visible or lasting injury. It can even include situations where there is no actual physical touch, fearing an assault, such as an aimed punch that fails to connect during an argument, can be enough for common assault.
Common assault is split into two types of offences. Common assault by battery is where a person intentionally or recklessly uses force against another person, such as a slap, push or punch. The term “common assault by beating” is the wording of any such arrest or charge, it often causes concern as a suspect will naturally dispute “beating” someone, but in reality it is just antiquated legal wording for the “application of force”, and the forced used can be very minor.
Simple common assault is where a person causes another to suffer or apprehend immediate unlawful violence, such as the pulling of an arm back as if to hit the other, or a thrown punch that fails to connect.
What is Self-defence?
Self-defence is the most general defence to any assault allegation. A person may use such force as is reasonable in the circumstances for the purposes of:
defence of another
defence of property
prevention of crime; or
When considering the reasonableness of the force used, two questions are considered:
was the use of force necessary in the circumstances, i.e. Was there a need for any force at all?; and
was the force used reasonable in the circumstances?
Much depends on the circumstances as the suspect believed them to be.
A suspect can rely upon an honestly held belief to establish reasonable force, even if it turns out to be mistaken. However, the more unreasonable the belief, the less likely it is that the court will accept it was honestly held.
The two key considerations to be taken into account when deciding whether the force used was reasonable are:
1. that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action;
2. that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
So, as self defence is a legitimate purpose, a person using force to defend themselves can rely on the defence even if it subsequently transpires that in hindsight the force used was more than was required.
As an example, if someone pushes you then you could push them back in self-defence, if you punched them back instead it may be seen as excessive physical force, but if at the time it was instinctively thought to be necessary then you could still rely upon self-defence for the punch.
Conversely, if someone pushes you and you reacted by punching and kicking them multiple times it would be difficult to justify that force as self-defence. It is unlikely to be accepted that such force was reasonable despite any instinctive or honestly held belief. A Court is likely to decide that the force used was excessive and therefore unlawful.
There is no rule to say that a person must wait to be struck first before they defend themselves. A person fearing an imminent attack can use force to defend themselves, or another.
Failure to retreat when attacked and when it is possible and safe to do so is not conclusive evidence that a person was not acting in self-defence.
Once self-defence is raised it is for the prosecution to disprove beyond all reasonable doubt that the suspect was not acting to defend himself/herself or another; or not acting to defend property; or not acting to prevent a crime or to apprehend an offender; or that the force used was excessive.
Consent is a separate but key issue, ordinarily it must be proven that the offence was committed without consent, hence why a victim statement and support for a prosecution is an important factor. Many domestic violence allegations result in no further action because victims fail to give statements or fail to support a prosecution after an initial complaint to the police. However, if there is other evidence to infer a lack of consent, such as other witness accounts or video footage, then a prosecution can continue.
Common assault is a summary offence, and therefore the maximum sentence is 6 months in prison.
ABH stand for Actual Bodily Harm. It is more serious than common assault, it basically covers cases where more harm is caused to the victim. There is considerable overlap between common assault and ABH and it is not unusual for a suspect to be arrested for ABH but charged with common assault.
Serious injuries which may be considered as ABH include damaged teeth or bones, extensive and severe bruising, cuts requiring stitching and incidents that result in a loss of consciousness.
Common assault injuries often include grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin and superficial cuts.
How the assault took place may also affect the charge, incidents involving punching, kicking or head-butting or where a weapon has been used are more likely to be ABH, as opposed to pushing or slapping which would often be classed as common assault.
It should be noted that a victim cannot consent to ABH injuries.
ABH carries a maximum sentence of 5 years in prison. Note that defences such as self-defence as discussed above still apply.
GBH stands for grievous bodily harm, it means "really serious" harm. It is more serious than ABH.
Life-changing injuries are normally charged as GBH. Just as the need for medical treatment may indicate ABH injuries, significant or sustained medical treatment (for instance, broken bones, intensive care or a blood transfusion) may indicate GBH injuries, even if a full or relatively full recovery follows. Examples of GBH include broken bones or a stab wound.
There are two types of GBH, section 20 and section 18. Section 18 is more serious as it means the defendant intended to cause that level of injury.
The prosecution must prove under section 20 that either the defendant intended, or actually foresaw, that the act might cause some harm. It is not necessary to prove that the defendant either intended or foresaw the level of injury that resulted. So, for example, if you punch someone and it broke their jaw, it may not have been your intention to break their jaw, but as some harm was foreseeable, a section 20 GBH would be the appropriate charge.
The prosecution must prove under section 18 that the suspect intended to wound and/or cause grievous bodily harm, and such harm occurred.
Intention is harder to prove as it requires a conscious act, such as planning, a repeated attack, selecting and using a weapon, threats made prior to an attack or kicking or using a weapon towards a person’s head.
It should be noted that a victim cannot consent to GBH injuries.
The maximum sentence for section 20 is five years in prison, for section 18 it is life imprisonment, therefore avoiding a prosecution for section 18 GBH is essential. Note that defences such as self-defence as discussed above still apply.