What Is Common Assault? The Law, Sentencing and Your Defence (England and Wales)

Common assault is the most commonly charged violent offence in England and Wales, and being accused of it is frightening, especially if it is your first contact with the criminal justice system. This guide explains what common assault means in law, what the prosecution has to prove, the sentence you could face (including on a first offence), and the defences that may apply. It is written for people who have been arrested, interviewed under caution, or charged, and who need to understand their position quickly and decide what to do next.

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Common assault is committed when one person intentionally or recklessly causes another to fear immediate unlawful violence (an "assault"), or applies unlawful force to another person (a "battery"). It is a summary offence under section 39 of the Criminal Justice Act 1988 and is the least serious offence on the scale of violence. No injury, and in the "fear of violence" form, no physical contact at all, is needed for the offence to be made out.

What is common assault?

In ordinary speech, "assault" means hitting someone, but in law, common assault covers two distinct things, often called the two limbs of the offence.

The first limb is assault in the strict sense: causing another person to apprehend immediate unlawful violence. Raising a fist, lunging forward, or threatening words said in a way that makes the other person believe they are about to be struck can all amount to an assault, even though no blow lands. This is the form Allen Hoole has historically described as common assault "fear of violence".

The second limb is battery, sometimes charged as "assault by beating": the actual application of unlawful force, however slight. A push, a slap, spitting, or throwing a drink over someone can all be a battery. There need be no injury; if an injury is caused, the charge is likely to be more serious (see below).

Both limbs are prosecuted as common assault under section 39 of the Criminal Justice Act 1988. If you have been charged specifically with the battery form, our dedicated page on assault by beating covers that limb in more detail.

Common assault, ABH and GBH: where it sits on the scale

Common assault is the lowest rung on the ladder of violent offences. Where an assault causes injury, the Crown Prosecution Service may charge a more serious offence instead:

Common assault (section 39 CJA 1988): no injury, or very minor marks such as a graze or transient reddening.
Assault occasioning actual bodily harm (ABH): injury that is more than trivial, such as bruising, a cut, or psychiatric harm. See actual bodily harm (ABH).
Grievous bodily harm (GBH): really serious harm, charged under section 20 or, where there is intent, section 18. See grievous bodily harm (GBH).

The line between common assault and ABH is frequently the most important issue in a case, because it determines where the case is heard and the sentence on the table. A skilled defence can sometimes persuade the prosecution that the correct charge is common assault rather than ABH.

What the prosecution must prove (points to prove)

To convict you of common assault, the prosecution must prove each of the following beyond reasonable doubt:

An act by the defendant. Either an act causing the victim to fear immediate unlawful violence, or the application of unlawful force. An omission alone is rarely enough.
That act caused the victim to apprehend immediate unlawful violence or caused the unlawful contact.
Intention or recklessness. You either intended the outcome or were reckless as to whether it would happen. Genuine accident is not enough.
The force or threat was unlawful, meaning it was not justified by, for example, self-defence or lawful consent.

If the prosecution cannot prove any one of these elements, the charge should fail. Identifying the weakest element early is central to building a defence.

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Common assault sentencing: what penalty could you face?

Common assault is a summary-only offence, which means it is dealt with in the magistrates' court. The maximum sentence is six months' imprisonment, an unlimited fine, or both under section 39 of the Criminal Justice Act 1988.

In practice, most common assault sentences fall well short of the maximum. Sentencing follows the Sentencing Council's guideline for assault, which weighs the harm caused and your culpability. Typical outcomes range from a conditional discharge or fine, through to a community order, with custody reserved for the most serious cases or where there is a relevant record.

Certain features make a sentence more serious, including:

Assault on an emergency worker (a separate, more serious offence with a higher maximum). See assault of an emergency worker.
A racially or religiously aggravated common assault under the Crime and Disorder Act 1998, which carries a higher maximum penalty.
A domestic context, which the guidelines treat as an aggravating factor.

Common assault and a first offence

If this is your first offence, the court will treat your previous good character as a mitigating factor. A first-time common assault with no injury and genuine remorse will often result in a fine, a conditional discharge, or a community order rather than custody. A conviction will still appear on your record and can show on an enhanced DBS check, which is why avoiding a conviction altogether, where the evidence allows, matters even when custody is unlikely.

It is also worth knowing that there is a strict time limit of six months for bringing most common assault charges.

Defences to a common assault charge

A charge is not a conviction. Several defences and challenges are commonly available, and the right one depends on the facts.

Self-defence

Self-defence is one of the most effective answers to a common assault charge. If you used reasonable force to protect yourself or another person from a genuine or perceived threat, your actions may be lawful. The force must be reasonable in the circumstances as you believed them to be; it does not have to be perfectly judged in the heat of the moment.

Evidential issues and discontinuation

Many common assault cases rest on one person's word against another's, often with no independent witness and no injury. Where the evidence is weak, inconsistent, or unsupported, we can make representations to the Crown Prosecution Service that there is no realistic prospect of conviction, which can lead to the case being discontinued before trial.

Mental health defences and expert reports

Where mental health is relevant, whether to the question of intent, to fitness, or to mitigation, expert evidence can change the outcome of a case. Allen Hoole holds the Law Society's Mental Health accreditation and regularly instructs appropriate experts to prepare reports. This is an area many firms overlook and one where early, informed action makes a real difference.

Out-of-court disposals for low-level offences

Not every common assault allegation ends in court. For lower-level matters, particularly first offences with no injury, the police and prosecution may consider an out-of-court disposal such as a community resolution or a conditional caution. These avoid a criminal conviction, although a caution is still recorded and can be disclosed in some circumstances. Whether such a disposal is appropriate, and whether to accept one, is an important decision that should be made with legal advice, because accepting a caution means admitting the offence.

What happens after you are charged with common assault

If you are charged, you will be given a date to attend the magistrates' court. You will be asked to enter a plea of guilty or not guilty. If you plead not guilty, the case is set down for trial, the prosecution serves its evidence, and your defence is prepared. Throughout this process, you are entitled to legal representation, and in many cases, legal aid or affordable private funding is available. Acting early, before your first hearing, gives your solicitor the best opportunity to challenge the evidence, advise on plea, and present your case in the strongest light.

How Allen Hoole defends common assault cases

Allen Hoole is one of the largest criminal defence firms in the South West of England, with offices in Bristol, Cheltenham and Keynsham and a 24-hour service for those who have been arrested. The firm is regulated by the Solicitors Regulation Authority (SRA number 462128) and holds Lexcel, Criminal Litigation and Mental Health accreditations. Our team scrutinises the evidence from the first day, advises clearly on plea and likely outcome, and fights to have weak cases dropped and charges reduced where the facts allow.

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Common assault: frequently asked questions

Is common assault a summary offence?

Yes. Common assault is a summary-only offence, which means it is tried in the magistrates' court rather than the Crown Court. The maximum sentence is six months' imprisonment, an unlimited fine, or both.

What is the difference between common assault and assault by beating?

They are the same offence under section 39 of the Criminal Justice Act 1988, charged in two forms. "Common assault" in the strict sense means causing someone to fear immediate violence, while "assault by beating" (battery) means applying unlawful force. Both are dealt with in the same way by the courts.

Will I go to prison for a first common assault offence?

It is unlikely for a first offence with no injury. Courts usually impose a fine, a conditional discharge, or a community order in such cases, reserving custody for serious or repeat offending. A conviction will still appear on your record, so it is worth defending the charge where the evidence allows.

What does the prosecution have to prove for common assault?

The prosecution must prove that you committed an act that caused the victim to fear immediate unlawful violence or applied unlawful force, that you did so intentionally or recklessly, and that the act was unlawful. Each element must be proved beyond reasonable doubt.

Can common assault be dropped before trial?

Yes. If the evidence is weak or inconsistent, your solicitor can make representations to the Crown Prosecution Service that there is no realistic prospect of conviction, which can result in the case being discontinued.

Does common assault require physical contact?

No. The "fear of violence" form of common assault needs no physical contact at all; a threat or gesture that makes someone believe they are about to be attacked can be enough. The battery form does involve unlawful contact, however slight.

How long do the police have to charge common assault?

There is a strict time limit for most common assault charges, with an extended limit in domestic abuse cases.

This article explains the law in general terms for England and Wales and is not legal advice. If you have been accused of common assault, get advice on your own circumstances as soon as possible.