Assault may be defined as ‘any act by which the defendant, intentionally or recklessly, causes the claimant to apprehend immediate and unlawful personal violence’ (R v Ireland [1998] AC 147, 165 (Lord Hope).
In other words, assault occurs where the defendant deliberately does something to make the claimant think she is about to be the victim of a battery. In practice assault and battery will often accompany each other. So when X punches Y in the face, there will be a battery when the punch lands and an assault because Y will anticipate the impact of X’s fist just before the punch lands.
The courts have shown some flexibility as to the requirement of ‘immediate’ harm.
Over a period of several months, Ireland made repeated telephone calls to three women. During the calls Ireland remained silent; on some occasions he breathed heavily. As a result of the calls, each of the women suffered psychiatric harm. Ireland was convicted of three offences of assault causing actual bodily harm contrary to s 47 of the Offences Against the Person Act 1861. The House of Lords held that recognised psychiatric injuries constituted ‘bodily harm’ for the purpose of s 47 and that, in principle, a silent phone caller might be guilty of assault under s 47.
‘Silent telephone calls . . . are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate unlawful violence.’ (Lord Hope at 166).
It is clear that the apprehension by the claimant of an imminent battery must be reasonably held. In determining reasonableness, the court will take account of the broader circumstances, including what was said by D.
T, with his hand on the hilt of his sword, threatened S that ‘[i]f it were not assize-time, I should not take such language from you’. The question of assault arose in the context of T’s action against S for battery: T had been blinded by S and S relied on assault by T as a defence. Held: T’s actions did not constitute an assault as his words neutralised his aggressive act.
While the words in Tuberville negated the prospect of an immediate battery, a conditional threat may nevertheless amount to assault.
C, having been dismissed from D’s employment, returned to D’s workshop several days later. When C refused to leave, D’s workmen gathered round C ‘tucking up their sleeves and aprons’. D told C that he would break C’s neck unless C left. Fearing he would be attacked C left. The Court of Common Pleas upheld the jury’s finding that D was liable for assault.
In R v Ireland [1998] AC 147, 165, Lord Hope defined assault as ‘any act by which the defendant, intentionally or recklessly, causes the claimant to apprehend immediate and unlawful personal violence’.
However, in Bici, Elias J dismissed C2’s claim for assault on the ground that there was no ‘no basis for any finding that the soldiers intended personally to put him in fear of imminent violence’. Elias J continued:
‘Indeed, there was no evidence that they intended to put anyone at all in fear. The fact that it may have been the consequence of their actions, even a foreseeable consequence, is not enough to fix them with liability in trespass.’ [2004] EWHC 786 (QB) at [77].
There is authority that in addition to an intention on the defendant’s part to commit a battery, the claimant must also show that the defendant had the capacity to do so: ‘[a]n assault has long been defined as an overt action, by word or by deed, indicating an immediate intention to commit a battery and with the capacity to carry the threat into action . . .’ Wainwright v Home Office [2001] EWCA Civ 2081 at [68] (Buxton LJ).
Cs were miners who attempted to go to work during a strike. The Cs entered the collieries in buses or taxis and the vehicles were separated from pickets by lines of policemen. Scott J held that the intimidation by the pickets could not constitute assault.
‘The tort of assault is not, in my view, committed, unless the capacity in question is present at the time the overt act is committed. Since the working miners are in vehicles and the pickets are held back from the vehicles, I do not understand how even the most violent of threats or gestures could be said to constitute an assault.’ Scott J at 62.
C1 was the President of the Republic of Equatorial Guinea. C2 was the Republic itself. The Cs alleged that the Ds had conspired to overthrow the Republic’s government, seize power and kill or injure C1. C1 claimed, inter alia, general damages for assault.
Sir Anthony Clarke MR, delivering the judgment of the Court of Appeal, held that the tort of assault required (i) an overt act causing the claimant to apprehend the infliction of immediate and unlawful force and (ii) capacity on the part of the defendant to carry out that threat with immediate effect.
The Court of Appeal held that the judge had been right to strike out the claim on the basis that there was no allegation in the particulars of claim of fear of an immediate application of force (paras [73] and [79]).
Further, there was no allegation of an overt act causing C1 to apprehend the infliction of immediate violence (para [80]). All that was alleged was that an advance party of mercenaries was present on the island of Bioko on which the Republic’s capital, Malabo, is situated, while the main body of mercenaries and their arms were still in Zimbabwe.
Finally, there was no allegation that the Ds had the capacity to carry out an immediate attack (para [82]).
It may be argued that in both of these cases the point might be better explained on the basis that there was no assault because any fear of immediate violence on part of the claimants would not have been reasonably held. Certainly, it seems difficult to argue against liability where D succeeds in his intention of causing C to fear an immediate battery. For example, suppose D points a gun at C and threatens to pull the trigger. Unknown to C, but known to D, the gun is not loaded. Should D really escape liability for the fear and distress he causes C?
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