International Law Research; Vol. 4, No. 1; 2015 ISSN 1927-5234 E-ISSN 1927-5242 Published by Canadian Center of Science and Education Modernising the Common Law Offences of Assault and Battery Graham McBain1,2 1 Peterhouse, Cambridge, UK 2 Harvard Law School, USA Correspondence: Graham McBain, 21 Millmead Terrace, Guildford, Surrey GU2 4AT, UK. E-mail: [email protected] Received: June 29, 2015 Accepted: July 24, 2015 Online Published: August 3, 2015 doi:10.5539/ilr.v4n1p39 URL: http://dx.doi.org/10.5539/ilr.v4n1p39 1. Introduction The common law offences of assault and battery are one of the basic building blocks of the English criminal law. They are (like many common law offences) also very old. Indeed, battery is probably one of the oldest extant offences given that Anglo-Saxon law recognised ‘wounding’- with an elaborate tariff of fines imposed depending on the nature of the injury inflicted.1 As for assault, this belongs to a politer age and it does not seem to have become a criminal offence until (probably) the 14th century. 2 In respect of assault and battery: Nature of Battery. Battery comprised - and still does - the infliction of unlawful physical injury on another. Thus, it includes offences such as homicide and rape as well as wounding. However, since Anglo-Saxon times, homicide and rape - as well as many other offences such as murder, manslaughter, mayhem 3 and affray - have become independent offences. So too, the offence of false imprisonment 4 as well as those of escape, prison breach and rescue5 - offences which also (often) involve assault or battery; Civil Remedy. Today, with the emergence of these independent offences, the ambits of assault and battery are more restricted in scope. Further, since early times, a civil remedy has been available; Defences. There have also been longstanding defences to assault and battery viz. where a person, acting reasonably: (a) acts in self-defence; or (b) acts to protect others; or (c) acts to protect his property or goods; or (d) where the assault or battery is lawfully administered by the requisite legal authorities; or (e) where (in the past) a man reasonably chastised his wife, child, servant, villain or apprentice for bad behaviour (or a teacher a child for the same, when acting in loco parentis). The rationale for these not being criminal was that they were to prevent a ‘breach of the peace’ (i.e. a crime) or to punish the commission of the same (eg. the lawful execution of a person for a crime) or to inculcate lawful obedience. There have also been cases where an assault or battery was held not to have occurred - such as in the case of surgery since it was therapeutic (that is, designed not to cause an injury, but to heal one). Further, in practice, minor (de minimis) assaults and batteries have not been subject to criminal punishment (and where they have been, the courts have usually only awarded a nominal sum); Consent. In modern times, it has been asserted that persons can consent to other than minor batteries being intentionally or recklessly committed against them (eg. when playing ‘games’ whether organised 1 This tariff system continued from the 6th century AD until (at least) c. 1113 (see 5). Anglo-Saxon law derived from Germanic law, since, by AD 500, the Western Roman Empire gave way to a number of Germanic kingdoms and ‘various Germanic peoples known as the Anglo-Saxons settled in Britain between the middle of the fifth and the middle of the sixth centuries.’ See KF Drew, The Laws of the Salian Franks (University of Pennsylvania Press, 1991), p 25. This text contains a useful discussion on the supplanting of Roman law by Germanic law from the decline of the Roman Empire. 2 The Laws of Henry I (c. 1113) (see n 8 and 5) suggest that the criminal law covered only actual (and not threatened) acts of violence. Further, that it covered intentional acts but not negligent or accidental ones, see ns 103 & 104. 3 DM Walker, The Oxford Companion to Law (Oxford, 1980), (definition of mayhem) ‘In medieval English law, an injury to the person which amounted to the deprivation of a member used for fighting. It could originally be prosecuted by an appeal of felony, but usually by proceedings for trespass. It is now treated as a malicious injury to the person.’ 4 See GS McBain, False Imprisonment and Refusing to Assist a Police Officer - The Need for Statutory Offences. Journal of Politics and Law (2015), vol 8, no 3, pp 51-99. 5 See GS McBain, Modernising the Law of Escape, Prison Breach and Rescue. Review of European Studies (2014), vol 6, no 4, pp 147-73. 39 www.ccsenet.org/ilr International Law Research Vol. 4, No. 1; 2015 sports, horseplay or sexual games, including sado-masochism). However, it is asserted that this is inaccurate since the criminal law - from early times - has never recognised that a person can consent to a ‘breach of the peace’. Thus, if intentional or reckless, injury results, it is a crime, even if consensual (so too any non-therapeutic mutilation) unless the same is treated as minor or legislation expressly permits it (tattooing etc.). Thus, modern caselaw is in danger of creating a new ‘defence’ at common law, when there was none; Aggravated Batteries. Besides assault and battery at common law there are various aggravated assaults and batteries pursuant to legislation. However, there are also many legal problems with the current law on assault and battery - such that it would be useful to put these offences into modern legislation. For example, ‘assault’ is often (incorrectly) used as a generic expression to cover battery as well as assault. This causes much confusion. Further, the definitions of ‘assault’ and ‘battery’ are old. They should be cast in a more modern, and intelligible, form. Finally, the actus reus and mens rea for these offences should be clarified - as well as the precise nature of the defences available. In order to highlight these problems - as well as the means of their resolution - this article considers the history of these offences. Also, it analyses the references to assault and battery in the principal texts on criminal law from early, up to modern, times. In conclusion, this article asserts that there should be new statutory offences of ‘Violent Assault’ (formerly, battery) and ‘Threatened Violent Assault’ (formerly, assault). And, that the criminal and civil forms should be (almost) the same. Also, that the aggravated forms of these offences should be reflected in the punishment - rather than in any change to the definitions of assault and battery. Finally, any aggravated offences should be few in number. 2. Source Material With regard to this article, the following primary texts are considered: Anglo-Saxon Law. Reference is made to texts by Attenborough, Robertson and Thorpe,6 which contain translations of laws (dooms) from king Aethelbert (c. 518-616) until the Norman Conquest of 1066. Reference is also made to O’Brien, which contains an alleged version of the laws of Edward the Confessor (1042-66);7 Medieval Texts. Reference is made to the Laws of Henry I (c. 1113) 8 as well as to the first text on English law, by Glanvill (c. 1189).9 Also, to Bracton (c. 1240),10 Britton, (c. 1290),11 Fleta (c. 1290) 12 and the Mirror of Justices (c. 1290);13 Yearbooks, Selden Society Reports & Book of Assizes. Reference is made to the Yearbooks (1268-1535), 14 the Selden Society reports 15 and the Book of Assizes (Liber Assisarum)(being criminal cases in the time of Edward III, 1327-77);16 Abridgments. Reference is made to the abridgments of Statham (c.1490),17 Fitzherbert (c.1516) 18 and Brooke (1586) 19 as well as to the later abridgments of Hughes (1660-3), 20 Rolle (1668), 21 6 FL Attenborough, The Laws of the Earliest English Kings (NY, 1963); AJ Robertson, The Laws of the Kings of England from Edmund to Henry I (Cambridge UP, 1925)(the latter covers legislation from AD 942 up to the reign of Henry I (1100-35)) and B Thorpe (ed), Ancient Laws and Institutes of England (1840). 7 BR O’Brien, God’s Peace and King’s Peace. The Laws of Edward the Confessor (Univ. of Pennsylvania Press, 1999). 8 LJ Downer, Leges Henrici Primi (Oxford, 1972). 9 Glanvill, The Treatise on the Laws and Customs of the Realm of England (c. 1189)(Nelson, 1965). 10 H Bracton (trans Thorne), On the Law and Customs of England c.1240 (Cambridge UP, 1968-76). Bracton is now online, see bracton.law.harvard.edu 11 FM Nichols (ed), Britton (John Byrne & Co, 1901). 12 Fleta, see Selden Society (‘SS’), vols 72, 89 and 99. 13 Mirror of Justices, SS, vol 7. 14 The best edition is that of Maynard (Vulgate, 1678), reprinted by LBE. David Seipp (a professor at Boston university) has put translations of most of the 22,000 Yearbook cases online in the form of an Index. See www.bu.edu/law/faculty/scholarship/yearbooks). 15 See selden.society.com. Also www.wshein.com/ which has put SS vols 1-99 online. 16 See www.lawbookexchange.com/. The Liber was first published in 1516 (J Rastell). 17 N Statham, Abridgment of the Law (Pynson, c.1490). See translation of MC Klingelsmith (Boston Book Co., 1915). 18 A Fitzherbert, La Graunde Abridgment. The 3rd ed (1577) is generally preferred and it is cited in this article. The 3rd edition has been reprinted by the Law Book Exchange. 19 R Brooke, La Graunde Abridgment (Tottell, 1586).