Jurisdiction(s):
United Kingdom

Related legal acts

Key definition

Assault and battery definition

What does Assault and battery mean? In legal practice, “assault and battery” describes two linked wrongs: assault is causing another to apprehend immediate, unlawful violence; battery is the intentional or reckless application of unlawful force, even minimal touching beyond everyday contact. In England & Wales and Northern Ireland, the offences are distinct at common law, with definitions developed by case law; ‘common assault’ covers an assault (fear-only) and ‘assault by beating’ is commonly used to describe battery. Section 39 of the Criminal Justice Act 1988 (E&W) sets trial and sentencing but not the definitions. Assault can be committed without physical contact (e.g. words or gestures) if...

Assault with intent to resist or prevent arrest (OAPA 1861, s 38): elements, lawful apprehension, mistake of fact, defences and sentencing in England and Wales

Published by a LexisNexis Corporate Crime expert

Practice notes

The offence of assault with intent to resist or prevent arrest, contrary to section 38 of the Offences Against the Person Act 1861 (OATPA 1861), is triable either in the magistrates’ court or in the Crown Court. Magistrates may refuse jurisdiction where their sentencing powers are thought to be inadequate in a given case. Guidance on the scope of magistrates’ court sentencing is set out, for that purpose, in the Sentencing Council’s Magistrates’ Court overarching guideline—allocation where relevant.

Elements of the offence of assault with intent to resist or prevent arrest

The components of the offence appear in OATPA 1861, s 38. The prosecution must show that the accused committed the following:

an assault upon any person
with the intention to resist or prevent
the lawful apprehension or detention of themselves or another for any offence

Meaning of assault

A charge under OATPA 1861, s 38 demands proof of a common assault. Common assault consists of conduct causing the complainant to anticipate the immediate application of unlawful force. See also Practice Note: Common Assault and battery. The prosecution must establish that the assault was carried out intentionally or recklessly. The governing test for Recklessness is that in R v Cunningham...

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Web page updated on 21/05/2026

Popular documents

Using the Judicial College Guidelines to assess general damages in personal injury claims

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

Tomlin orders in England and Wales: CPR guidance on drafting, confidentiality, approval, variation, enforcement, limitation, CCA issues, court-specific requirements, sample wording and precedents

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

Precedent: Deed of Surrender of Lease with Optional Premium, Settlement and Release, Landlord, Mortgagee and Guarantor Consents, Reimbursement and HM Land Registry Provisions (England and Wales)

Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...

Precedent Statutory Declaration: Standard Wording under the Statutory Declarations Act 1835

I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...