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Have you been charged with common assault? This incredibly old offence under English law was previously only captured in common law, which means it was not defined in legislation. However, that changed when it was enshrined in legislation in 1988. This article explores the offence of common assault. It looks at how serious this offence is, and the maximum sentence that you could expect to receive for it. We will also look at the factors that the court will take into consideration when deciding the length of your sentence. We hope that you walk away with a good understanding of this commonly occurring offence, but give you an indication of how to get further help if needed.
Common assault is established as an offence by Section 39 of the Criminal Justice Act 1988. However, the legislation does not provide a definition of this offence. The definition comes from the common law i.e. the decisions reached in the criminal courts over the years. The CPS explain this definition as follows:
‘An assault is any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person.’
Where an offence involves the application of unlawful force, the charge sheet should state ‘assault by battery’. Therefore, the term common assault can mean both a threatening action, for example, raising a fist to someone without actually hitting them, and it could also mean a violent act, such as striking a person. If the violent act causes an injury to the person, it is more likely to be prosecuted as the more serious offences of Actual Bodily Harm and Grievous Bodily Harm contrary to the Offences Against the Person Act 1861.
A key element of the offence of common assault is lack of consent by the victim. Consent can be express, i.e. you give the dentist permission to remove your tooth, or implied, i.e. your friend pats you on the arm to comfort you when you are having a bad day. Every day physical contact, such as a person brushing past you at the train station, is not actionable. This is because the courts have found that there is an implied consent by those go out in public who expose themselves to the risk of physical contact.
Common assault is a ‘summary only’ offence, which means that it can only be tried in the Magistrates’ Court. The exception to this is where the conditions at Section 40 of the Criminal Justice Act 1988 are met. This states that where more serious indictable charges also arise out of the same set of events, common assault could be tried alongside them in the Crown Court. Say for example, a person is charged with common assault, rape, and kidnapping out of a single incident. These offences could all be heard together in the Crown Court.
Where common assault is being treated as a summary only offence in the Magistrates’ Court, the information must be laid before the court within six months of the offence taking place. This is established by Section 127 of the Magistrates Court Act 1980. This prevents relatively minor standalone crimes such as common assault from being prosecuted many years after they took place.
According to Section 39 of the Criminal Justice Act 1988, the maximum sentence for Common Assault is six months’ imprisonment, or a fine not exceeding level 5 of the standard scale. But what does level 5 on the standard scale mean in today’s terms?
For offences committed after 13 March 2015, level 5 fines are unlimited. Prior to this date, the limit was £5000. When calculating the fine that you should be given, the court must take into account the following factors:
For the offence of common assault, you are unlikely to be fined more than 175% of your weekly income. According to the Sentencing Council (the government body that decides what is appropriate in terms of sentencing), the court should aim for a fine to have an equal impact on offenders with different financial circumstances. Whilst a fine should be a hardship, it should not deprive the defendant of the means to live. Normally, the fine should be an amount that the defendant is capable of paying within 12 months.
When ordering a fine, the court should consider making an order of compensation to the victim. This order can provide redress for personal injury, loss, or damage resulting from the offence.
Say, for example, the common assault offence related to one man pushing another into a wall. The compensation would be for his bruised head, as well as the cost of repairing his broken watch. Whether this appropriate depends on the facts of the case, and the victim’s wishes. In addition to compensation and the fine, the court must order that the defendant pays the criminal court surcharge (amounts set out here). There is also a discretion to seek to recover the prosecution’s costs.
Once a defendant has been found guilty of common assault, the court will then decide on their sentence. This will be determined based on two factors:
Offences are split into three categories based on these factors.
Say, for example, a young woman texts her friend saying she plans to go and intimidate the old lady who lives across the road by pushing her off the pavement; she then goes ahead and does just this. This would be a category 1 offence as the offender planned the offence ahead of time, and deliberately targeted a vulnerable victim, and the level of harm is also high because of the victim’s vulnerability. The starting point for a category 1 offence is a high level community order. Aggravating factors such as having repeated similar offences in the past could increase this to up to six months’ custody. Mitigating factors such as remorse and previous good character could reduce this to a low level community order.
At the other end of the spectrum, imagine a young man is rushing to get to work on time. There is another young man ahead of him on the pavement, who does not respond to his request to please move out of the way. So the man, in the spur of the moment, pushes the other man off the pavement. In this second example, both the level of harm and level of culpability appear to be low, so this would in all likelihood be a category 3 offence. This means that the starting point would be a Band A fine (for which the starting point is 50% of the defendant’s weekly income). Mitigating factors such as the young age of the offender or the fact that they were suffering from a serious medical condition could reduce this to a discharge. Whereas aggravating factors, such as the fact that the offence was committed whilst on licence, or the fact that the victim was traumatised, could lead to this being increased to a Band C fine, the starting point for which is 150% of the defendant’s weekly income.
For more information, refer to the Sentencing Council guide here.
If you have been charged with common assault, there is a chance of getting your case dropped before trial. To see whether this is possible with your case, contact the experts at Stuart Miller Solicitors today! Our experienced team of criminal defence solicitors are here to help you navigate the criminal justice process. We will advise you on the strength of the prosecution’s case against you and provide you with information in respect of the defences that you may be able to rely upon. Contact us for a no obligation consultation today.
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