In England and Wales, the penalty and mode of trial for this offence is provided by section 39 of the Criminal Justice Act 1988.
This added a subsection which states any common assault or battery on an emergency worker (as defined in the Act) is triable either way and subject to a maximum of 12 months' imprisonment if tried on indictment.
[2] Section 39 of the Criminal Justice Act 1988 does not contain a definition of the expression "common assault" that appears there.
For example, if the defendant says that they "would beat the living daylights out of you if not for the presence of a police officer", the victim is supposed to understand that there is no immediate danger (cf.
However, if a mobile phone is used to transmit the threat (whether orally or by SMS) and, from the words used, the victim reasonably understands that an attack is imminent, this may constitute an assault.
Because of the steel toe cap in his boot, the policeman's foot was not in actual danger, but the Divisional Court held that this could constitute an assault.
This actus reus was a continuing act and the mens rea was formed during the relevant time (see concurrence).
[6] In that case, the plaintiff told the defendant (while putting his hand on his sword) that he would not stab him, because the circuit judge was visiting town for the local assizes.
Therein, the House of Lords held that the making of silent telephone calls could amount to an assault if it caused the victim to believe that physical violence might be used against him in the immediate future.
One example of "immediacy" adopted by the House in that case was that a man who said, "I will be at your door in a minute or two," might (in the circumstances where those words amounted to a threat) be guilty of an assault.
Relevant cases are: In England and Wales, section 29(1)(c) of the Crime and Disorder Act 1998 (c.37) creates the distinct offence of racially or religiously aggravated common assault.