Non-fatal offences against the person in English law

The latter two offences may be committed "with intent", meaning there is an additional mens rea component that makes the defendant more culpable for their actions.

Whilst recklessness is sufficient for most offences against the person – that the defendant foresaw the risk of the proscribed injury occurring without necessarily intending it to happen – this is insufficient for crimes of intent.

[1] In the context of the law of attempts, the Crown Prosecution Service advises that "where the evidence demonstrates that the suspect intended to cause an injury that is substantially more serious than that (if any) which was in fact caused, prosecutors should consider the circumstances of the case as a whole as well as the relevant sentencing guideline to determine the appropriate charge.

[5][6] Actions which constitute ordinary daily life are not considered assault or battery, for example, jostling on a crowded train.

[4][8] Assault is a summary offence in England and Wales, with the case heard only at a magistrates' court.

[6] The actus reus, endorsed in R v Ireland,[c 2] is any act by D that causes V to apprehend immediate and unlawful personal violence.

Andrew Simester and Bob Sullivan argue that the former is more correct, since lack on consent is vital to the crime; since the act may not constitute a harm even if enacted.

Mere lawful presence in a location is not enough to satisfy the conduct requirement; illegal trespass, however, is sufficient.

[11] John Cyril Smith has suggested that wilfully refusing to retract an inadvertent act that causes the victim to apprehend violence may constitute an assault by omission.

[15] In Constanza, it was sufficient for the prosecution to show that the victim feared an attack in the future, which may have been imminent.

[20] The mens rea requirement is that the defendant must have intend to, or recklessly, cause the victim to fear the possibility of immediate unlawful violence.

[19][21] Assault is a crime of "basic intent" for the purposes of the Majewski test concerning voluntary intoxication.

[21] The defendant commits a battery if they intentionally or recklessly apply unlawful force to another, without their consent.

[c 8][24] The general law on liability for omissions also applies to batteries, for example those of the continuing act (as in Fagan v MPC) and of a duty of care.

[24] However, in R v Ireland[c 2] the court ruled out psychological injury by means of a telephone as a form of battery, although it was not an important point in the case as other charges were brought.

[28] It employs Cunningham recklessness – that the defendant must have foreseen the risk of the infliction of unlawful force upon V.[27][29] In theory, at least, combining the mens rea of battery with the actus reus of assault, or vice versa, is not a crime.

[30] The Majewski test is applied to cases of voluntary intoxication, as battery is also a crime of "basic intent" in this scenario.

[27][30] Assault occasioning actual bodily harm carries a maximum sentence of 5 years under section 47 of the Offences against the Person Act 1861.

[33] In discussing causation, 'frightened' people are not expected to act entirely rationally; instead, a relevant test is that of R v Roberts.

[c 12][33] The wide range of injuries give prosecutors considerable discretion about which charge to bring against a defendant.

[35] There is no separate mens rea element from the assault or battery, making this a crime of constructive liability.

[38] The maximum penalty, five years, is the same as that for actual bodily harm, but a section 20 offence is considered more serious by the courts and the Crown Prosecution Service.

R v Burstow[c 16] extended "bodily harm" to include psychological trauma if it formed a recognised serious mental condition.

[c 17] This narrow definition was extended in R v Martin[c 18] and R v Halliday[c 19] to include, for example, injuries sustained during an attempt of the victim to flee.

[46] This was applied in R v Dica[c 20] and R v Konzani,[c 21] two cases of knowingly risking passing on HIV without explicit consent.

[46][48] This has been criticised since it breaks the correspondence principle, that the mens rea should match the actus reus of an offence.

Practically, the "virtual certainty" clause cannot come into force, since grievous bodily harm was not actually caused, by definition.

The defendant must foresee the risk of wounding or grievous bodily harm, where the core intent is to resist arrest.