Visit any remand court in the land and you are almost certain to find the offences of common assault and/or assault by beating somewhere on the list.
These are actually two separate offences, but are regularly referred to collectively as common assault. They are offences under section 39 of the Criminal Justice Act 1988 and have a maximum penalty of 6 months' custody and/or an unlimited fine on summary conviction.
Standard common assault, for want of a better expression, is defined as any action, either intentional or reckless, by one person (A) that causes another person (B) to apprehend the immediate use of unlawful violence. This could involve actions such as:
- (A) squaring up to (B) in a threatening manner;
- (A) throwing a punch or kick at (B), but failing to connect;
- (A) spitting at (B), but missing.
Assault by beating is a variation on the theme, where some physical contact, initiated either directly or indirectly by (A), is made with (B). There are a multitude of ways this offence could be committed, but it would typically involve actions such as:
- (A) shoving, pushing or pulling at (B);
- (A) punching or kicking (B);
- (A) slapping (B);
- (A) scratching or biting (B);
- (A) throwing, flicking or kicking an object that strikes (B);
- (A) splashing or spraying a liquid that makes contact with (B).
Assault by beating could, in theory, involve any direct contact by (A) that caused (B) to apprehend the immediate use of unlawful violence - that could be as simple as a pat on the back, or hand on the arm depending on the circumstances.
The extent of any injuries inflicted by (A) on (B) is the primary factor in whether the offence is charged as assault by beating or a more serious assault.
As these are two very common offences there are vast swathes of case law, which I shan't be dwelling on for the purposes of today's article. There are, however, two very important points that need to be mentioned by way of context:
- If (A) has the consent of (B), either direct or implied, to make contact with them, then that contact cannot be deemed an assault, as (B) cannot be deemed to apprehend the immediate use of unlawful violence. This might happen, for example, when (A) and (B) are playing football and come into contact during a legitimate tackle or even a foul. It might also happen if (A) was cutting the hair of (B), but accidentally snagged their hair or scratched their scalp with the clippers. You get the idea.
- The offence requires an element of unlawful violence. If (A)'s actions against (B) are lawful, then that cannot be deemed an assault. This is where the defence of self-defence typically arises, as the law allows anyone to use reasonable self-defence if they consider there is an imminent risk to their personal safety. Reasonable self-defence encompasses those actions that are necessary and proportionate for a person to prevent the imminent risk of harm to themself. This could include pre-emptive self-defence - e.g. (B) kicking (A) if they approached brandishing a weapon in a threatening manner. If you ever read an assault by beating statement or listen to live evidence, you will see that there is usually inclusion the fact that the defendant did not have consent, either implied or otherwise, to assault the complainant.
The case of White v. Rex:
Mr White, 20, not his real name, was before the court accused of two offences of assault by beating and another of causing fear or provocation of violence. He denied all three offences and was appearing for trial. The offences were alleged to have taken place at a large local shopping centre, Hyper Mall. Mr White is a student at one of the local universities.
The prosecution case:
According to the Crown, Mr White had attended Hyper Mall with his skateboard. He was riding up and down the mall and practising his moves on various items of mall furniture.
Mr Smith, a security guard employed by Hyper Mall, approached Mr White and asked him to leave the shopping centre. Mr Smith recognised Mr White from previous dealings with him. As previous interactions had not been favourable, Mr Smith had taken the opportunity to activate his body worn video camera on his approach to Mr White.
Mr White told Mr Smith that he wasn't causing any harm and wasn't prepared to leave as it was raining heavily outside. Mr Smith radioed for the assistance of his colleague, Mr Robinson, who arrived on the scene a few minutes later. Mr Smith radioed the centre's CCTV control room and asked them to monitor the situation.
Mr Smith, now in the company of his colleague Mr Robinson, again asked Mr White to leave the shopping centre. They reminded him, as they had done on previous occasions, that skateboarding was not allowed inside Hyper Mall, as it caused damage to the seating and was a nuisance to legitimate shoppers.
Mr White said he would stop skateboarding, but wanted to remain inside to shelter from the rain. Mr Robinson tried asking him to leave, thinking he might get a more positive response than Mr Smith. Again, Mr White refused to leave. He said that he intended to visit JD Sports, which was located elsewhere within Hyper Mall.
Having by this stage asked Mr White to leave several times, Mr Smith told him that if he didn't start walking towards the exit the security staff would physically eject him from Hyper Mall. Mr White again refused, laughing at Mr Smith and saying: "Not likely, have you seen the state of yourself? You fat tub of shite." Mr White also told Mr Smith: "If you lay a finger on me I'll spark you right out."
Mr Smith and Mr Robinson then each took a firm grip of Mr White's forearms and stood at opposite sides of him, pushing him towards the exit. Mr White resisted the motion and started kicking his legs about, making contact with both Mr Smith's and Mr Robinson's shins.
Mr White was threatening and abusive, making personal comments about both security guards and telling them he would "kick the shit out" of them if he saw them alone outside in the street. As Mr White was still thrashing about, Mr Robinson kicked his legs out from beneath him and took him to the ground. The two officers then continued to drag him along the smooth Mall floor, despite him still resisting the motion.
By this time a third security guard, Miss Charlton, had arrived on the scene and was assisting her two male colleagues. The commotion was attracting quite a crowd of onlookers, some of whom were visibly distressed at what they were seeing and hearing. After dragging Mr White a distance of around 20 metres the three security staff managed to bundle him out of the exit, where the police had just arrived.
The police took control of the situation and arrested Mr White on suspicion of the offences at hand.
The body worn and centre CCTV footage corroborated the account of the security staff. Mr Smith and Mr Robinson gave live evidence indicating the same. Miss Charlton's evidence was agreed by way of a section 9 statement. Mr White gave a no comment interview to the police.
The defence case:
Mr White was represented at the trial, although it would appear that he had not taken the full advice of his solicitor.
Mr White agreed that he was skateboarding in Hyper Mall, which he knew was not allowed having been challenged by Mr Smith, who he recognised, on a previous occasion. He said it was raining heavily outside and he wanted to stay warm and dry. He said he was willing to compromise with the security staff by stopping his skateboarding if they allowed him to stay inside.
Mr White said he had not been aggressive or impolite with the security staff at the start of the incident, which was corroborated by Mr Smith's body worn footage. He only became angry when he was told that if he didn't leave, he would be physically ejected from Hyper Mall.
Mr White considered this warning very unreasonable and totally disproportionate in the circumstances. He couldn't remember how many times he had been asked to leave Hyper Mall, but it didn't matter because he had stopped skateboarding by that stage. His position was that as the source of the problem had been removed, he had no reason to leave.
Mr White said he was fearful of the security guards "laying hands on", as he had previously been the victim of a nasty assault. When they did take hold of his arms, he went into panic which is why he blurted out the "I'll spark you out" and "kick the shit out" comments without thinking. He started struggling in self-defence, because he was fearful of how the situation might escalate. He said he had kicked out because the security guards were causing pain to his arms and he wanted to escape.
Mr White said that when he was taken to the floor he stopped struggling as he just wanted the incident to be over. He said he was relieved to see the police arrive, as the actions of the security guards had been totally over the top.
The Magistrates' decision:
Mr White had accepted using threatening language, resisting and kicking out at Mr Smith and Mr Robinson - given the body worn and CCTV footage he could never have realistically denied these.
The Bench went on to consider if Mr White's actions in resisting and kicking at the security officers amounted to reasonable force in self-defence in the circumstances. If so, the offences of assault by beating would not be made out.
Mr White had attended Hyper Mall in the full knowledge that skateboarding was not allowed. As he had been challenged previously, the Bench considered it entirely likely that Mr White knew he would be approached by security staff on this occasion.
Hyper Mall, despite having public access, is privately owned. Mr White entered with an implied right of access, but the moment he was asked to leave by the security guards that right of access ceased to exist and he became a trespasser.
The security guards, acting as agents for Hyper Mall, had the absolute right to ask Mr White to leave for any reason, not least because he was knowingly breaking the centre's rules by skateboarding. As a trespasser, the security staff had a common law right to physically eject Mr White from Hyper Mall using minimal force.
In the Bench's view, given Mr White's repeated failure to leave as requested and the warning he would be physically ejected if he did not, the security guards acted reasonably in taking hold of his arms and pushing him towards the exit. In the Bench's view, this was an appropriate level force used by the security guards.
Furthermore, when Mr White began kicking at the shins of Mr Smith and Mr Robinson, Mr Robinson acted reasonably in taking him to the ground so that he could no longer kick out.
Considering Mr White's claim that he used reasonable force against Mr Smith and Mr Robinson in self-defence, the Bench rejected this. Mr White had claimed that he was struggling in order to escape from their grasp and the potential of escalated violence by Mr Smith and Mr Robinson. In the Bench's view, given the use of body worn video and presence of multiple witnesses, Mr White had no grounds to believe that the security guards posed a threat of unlawful violence towards him, which nullifies his claim of self-defence.
Mr White was convicted of all three offences.
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