The Criminal Justice Act 1988

Before advising David as to his criminal liability, the following act should be recognised; The Criminal Justice Act 1988, s. 39, which deals with assault and battery and The Offences Against the Person Act 1861 (including s. 47, s. 18 and s. 20). This act deals with the different types of non fatal offences against the person. ASSAULT: The Criminal Justice Act 1988, s. 39 provides that assault is a summary offence with a maximum sentence on conviction of six months' imprisonment or a fine.

The actus reus of an assault (or common assault) is committed when the accused intentionally or recklessly causes the victim to apprehend immediate and unlawful violence. The House of Lords recently confirmed this definition in the case of Ireland 1997, where an assault would be committed from silent phone calls, i. e. saying on the phone 'I will kill you' would amount to an assault.

It can be seen that no force need actually be applied to constitute this offence; the victim need only apprehend personal injury. The mens rea of assault is satisfied when the defendant intends to cause the victim to apprehend immediate physical violence or does this recklessly. The Court of Appeal stated in the case of Venna 1976 that: 'We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault'.

The defendant was actually convicted of assault occasioning actual bodily harm but the principles laid down relate to assault and battery. In Venna, Cunningham-style recklessness (subjective recklessness – what was in the defendants mind at the time of the crime) was applied but after the decision in Caldwell 1981 it was for a short while assumed that it would be sufficient to establish a more objective type of recklessness in all criminal offences where recklessness was part of the mens rea.

However after the case of Parmenter 1991, when the case went to the House of Lords, Lord Ackner supported the Court of Appeal's view. Cunningham recklessness therefore, must be established for the offences of assault and battery. From this it can be said that the later offence of David attacking Sanjay cannot suffice the requirements for an assault to have taken place, as he did not intentionally or recklessly cause Sanjay to apprehend immediate or unlawful violence.

The actus reus of battery consists of unlawful physical force on another, as confirmed by Ireland 1997. Lord Justice Goff affirmed in the case of Collins v Wilcock 1984 (whereby a policewoman had inflicted a battery when she took hold of the arm of the defendant she believed to be soliciting in order to detain her but without the intention to effect an arrest), that 'The fundamental principle, plain and incontestable is that every person's body is inviolate'.

He went on to quote with approval, the statement in Cole v Turner 1704, that 'the least touching of another in anger is a battery'. From these quotes it can be seen that the degree of physical force need not be high. The mens rea of battery is satisfied where the defendant intends to do such an act or is reckless about whether such force will be applied. A battery may start off as innocent, accidental act but may later become a battery during a sequence of events among which the mens rea of the offence is formed.

This was the position in the case of Fagan v Metropolitan Police Comissioner (where force was applied by running over the policeman's foot in a car). The defendant had also argued that he did not have the necessary mens rea for the offence. The Divisional Court held that 'there was an act constituting a battery which at its inception was not criminal because there was no element of intention, but became criminal from the moment the intention was formed'. The conviction therefore was upheld.

This can be related to David's case whereby he punched Sanjay, it could be said that David was in a dazed condition and as a result believed the referee is about to attack him therefore punched him. However even so he had the correct actus reus and men reus to commit a battery on Sanjay. Besides even if David thought he was going to be punched it is not within the rules of football to punch anyone in the game, especially the referee, which brings me to my next point.