The pictures show Charles Saatchi’s hand around his wife Nigella Lawson’s neck. He has accepted a caution for common assault, but what exactly has Saatchi actually admitted to?
The text books are clear: assault, in law, is not an offence that involves any physical attack on a person or even physical contact. It is a common law offence, sometimes called “psychic assault”, consisting of “an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person”. Collins v Willcock (1984)
More recent case law would seem to agree: “A defendant committed common assault when he did something of a physical kind which caused someone else to apprehend that they were about to be struck.” R v Nelson (Gary) 2013.
This was a case where a punch was thrown but the jury were uncertain that it had landed. The issue was whether a finding of common assault (where no contact can be inferred) could be substituted for the offence of assault by beating. The important point was that the victim apprehended an immediate beating, though fortunately it didn’t occur.
Yet police, prosecutors and presumably victims seem to treat “common assault” as being able to include battery – in other words as if the word assault has the commonly understood dictionary meaning of some sort of physical violence.
The CPS charging standards makes the distinction thus:
“An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.
A battery is committed when a person intentionally and recklessly applies unlawful force to another.”
But it also says this: “An offence of Common Assault is committed when a person either assaults another person or commits a battery.” It notes that the only distinction between common assault and causing actual bodily harm (under section 47 of the Offences against the Person Act 1861) is the degree of injury.
Statute, while not defining common assault, distinguishes it from battery (unlawful application of “force” including mere touching) in S. 39 of the Criminal Justice Act 1988:
“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.”
But even in the statute there is confusion as to whether S.39’s distinction applied to S.40(3)(a), where the words “common assault” were used apparently to include battery. In R v Lynsey  3 All ER 654 it was decided by the Court of Appeal that, indeed, the statute was inconsistent and in effect it was intended (in legal terms) to be inconsistent.
Henry LJ says: “Where the narrow meaning of the phrase ‘common assault’ makes no sense in its context in s.40 and cannot possibly reflect any rational policy, it is entirely permissible as a matter of construction [by the judge], in our view, to prefer the wider meaning of the same phrase, which makes good sense and reflects a rational policy. Draftsmen after all sometimes make mistakes.”
Hence common law assault could be charged as if S.40 applied even though S.39 would seem to restrict the term to to the narrow legal definition of “psychic” assault.
Henry LJ notes: “In the courts, assault has generally become synonymous with battery, that is to say when the word ‘assault’ was used it normally meant the intentional use of unlawful force to another’s person without his consent” – ie the classic legal definition of battery, not assault. The accused was charged with common assault yet he had spat at a police officer – on the face of it a classic battery with unlawful physical (albeit indirect) contact but no particular injury.”
Common assault has therefore become a sort of hybrid offence. “In practice, a common assault applies to an assault, a battery (or both) where relatively slight injury has been caused to the victim, or, depending on the circumstances of the case, where no physical harm at all has been sustained,” according to an article in the Justice of the Peace journal. (Leonard Jason-Lloyd (2004) 168 JPN 748)
‘Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free’ – Henry LJ
So how do we establish what Saatchi has admitted and what he has not? We have seen he had his hand to Nigella’s throat. He said it was “playful” and one might think that couples in intimate relationships might do and consent to such things. But even so his wife might have “apprehended” something less playful, the application of unlawful force without consent. Saatchi would have been guilty of orthodox textbook “psychic” assault.
But if the hand to the throat was the actual act of battery (unlawful, unwanted but not producing injury) then he has conceded to “common assault” in its wider meaning as encompassing the physical act, not just the “psychic” effect. In this case the apprehension came a split second before the clutching at her throat. It was the hybrid “common assault” consisting of assault plus battery rolled into one.
Does any of this confusion matter? If we believe the law should be clear, then yes. One need not worry too much about Charles Saatchi. He had the option of defending himself in court with the finest legal brains money can buy. They could have made much of the assault/battery distinction, about issues of consent or apprehension. But he just wanted to get the press off his back.
But what about all the other people in police custody suites who are being persuaded to accept a caution for “common assault”. Such an acceptance is not a conviction as such, but it boosts police clear-up rates very nicely without too much trouble. Throw into the mix the new “Eddie Stobart law” legal aid system in which franchised legal teams will also have an incentive to see cases off their books as quickly as possible and there is a likelihood of rather a lot of this sort of thing: persuading people to agree they’ve committed an offence the existence and definition of which remains vague and which the courts, the lawyers and the statutes cannot agree on.
Henry LJ said in Lynsey: “Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free.” It hasn’t happened yet but clearly should have happened by now.
Assault and battery: The perpetrator of an assault must have the intention to cause apprehension or be reckless as to whether it is caused. The victim must have a reasonable apprehension of an immediate battery – she must know it is a real possibility. Battery may include being hit or it may be some other unwanted touching – including a hand to the throat with no pressure applied.
Battery itself can be “any touching of another person, however slight” (Collins v Willcock) if it is non-consensual and intended by the perpetrator to be non-consensual. There need be no pain and no injury. A bit of jostling in the hurly burly of life does not count – in effect we accept the likelihood of accidental touching on the Underground, for example, but not deliberate touching (unless there is some necessity – to save us from falling on the rails, for example). Anger or hostility is probably not necessary to make out battery (Lord Goff in Re F 1990) since “any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass”.
Other physical assaults: For the record, the more serious physical assaults are assault occasioning actual bodily harm (ABH: Section 47 of the Offences Against the Person Act 1861) involving a “more than merely transient of trifling” harm (R v Donovan (1934)); wounding/inflicting grievous bodily harm (GBH: OAPA 1861 Section 20); and GBH with intent (OAPA 1861 Section 18).
The S.20 and S.18 offences both require intent but the more serious charge also involves ulterior intent – to cause GBH or to resist arrest. For the S.20 offence the perpetrator intended to do the act that resulted in GBH (ie was malicious) without intending the results of the attack ie without intending the GBH. Recklessness will suffice if there is foresight of harm
Note: in Regina v Nelson (Gary) the Court of Appeal decided common assault could not be substituted for assault by beating unless it had been originally charged. The reason is that common assault is not necessarily an ingredient of beating: it is possible to beat someone without their apprehending that the beating is to occur. You can, for example, creep up behind someone, hit them and not commit assault – only battery or ABH/GBH depending on the seriousness of the injuries. “Accordingly, an allegation of assault by beating neither amounted to, nor included, whether expressly or by implication, an allegation of common assault,” according to the court.
Keith J noted: “The offence of common assault was committed when the defendant did something of a physical kind which caused someone else to apprehend that they were about to be struck. It followed that an ingredient of common assault was that the assault had to have been apprehended by the person who was alleged to have been the victim of that assault. Such an apprehension, however, was not required for the offence of assault by beating. Accordingly, an allegation of assault by beating did not amount to or include, whether expressly or by implication, an allegation of common assault and it had, therefore, not been open to the jury to convict the defendant of common assault.” (Emphasis added)