Battery and the ‘touching’ requirement

So, I was out shopping at the weekend, and walked past a gadget shop. Outside the shop were a couple of staff, one demonstrating a (very) mini-helicopter toy, the other discreetly wielding what I now know to be an Air Zooka (see the video demo via the 'Movie' button). Essentially, this is a toy which propels a blast of air towards a target. It's the size and shape of a small (bottomless) bucket and is lined with what seems to be some kind of plastic bag, which is pulled back, in the manner of a catapult, and released, pushing the air out. The air blast is enough to cause hair to billow, and our man was occasionally 'blasting' passers-by, to the merriment of all concerned, including the targets (me among them).

Now, many academics – me included – are afflicted with a sense of being compelled to see their subject everywhere. So, I imagined a particularly mirthless individual on the receiving end of the blast. Leaving aside the issue of the (un)likelihood of prosecution, I wondered whether on such facts the elements of assault would be made out.

Assault has different meanings in criminal law. In the previous paragraph, it is used as an umbrella term to encompass both (i) battery and (ii) assault in its more technical sense. A couple of quick working definitions: Battery is the intentional or reckless infliction of unlawful force on another. Assault (in its technical sense) is the intentional or reckless causing in another of the apprehension of the infliction of immediate unlawful force.

Some preliminaries in relation to batteries. We are taken to consent to the touching which constitutes an inevitable aspect of daily life in modern society. So, we might not like the crowded bus, but our rights to autonomy and bodily integrity – and to not be touched – give way, on essentially utilitarian grounds, to the 'greater good' of people being able to go about their business, and we have to tolerate a bit of jostling as people make their way on and off. Consent renders lawful that which would otherwise be unlawful, and prevents these instances of physical contact from constituting batteries. (There also may be some kind of requirement that the touching which constitutes a battery be 'hostile' although the precise meaning of this is not absolutely clear.)

Now, let's think again about our mirthless target (MT), and the actions of the shop worker (SW) in discharging the Air Zooka at him or her. Notwithstanding the consent apparently given by the other passers-by, evidenced by their laughing along with the joke, this is not conduct to which we would say consent was given merely by virtue of social co-existence. While we might tacitly consent to a bit of jostling in a busy shopping centre, that consent does not, without more, extend to a blast from an Air Zooka. So, if MT declines to go along with SW's joke, there is an argument for saying that the administration of the blast is prima facie unlawful. (Let's leave hostility out of it, as its precise role, if any, is contestable.)

So it might be unlawful, but what about the other elements of assault / battery? First, let's get rid of assault (in its technical sense). When SW discharges the Air Zooka at MT, the latter does not apprehend the future (immediate) application of unlawful force. Rather, MT is vexed by the force from the blast of air itself. OK, so how about battery? The terms 'violence' and 'force' have both been used to describe what is applied to a victim of battery but I am not sure that a great deal turns on that here. Both terms are given a broad interpretation – a battery need be neither 'violent' nor 'forceful' in a vernacular sense. Typically, battery involves touching: A touches B. It also seems that the touching need not be 'direct'. A need not themselves touch B; it will suffice if, for example, A throws an item which touches B. How about the seemingly counterintuitive possibility of a battery involving no touching (direct or indirect)? In Ireland [1997] UKHL 34 the House of Lords pretty much took for granted that a battery requires touching, but that was in the context of a discussion of whether silent telephone calls could in principle amount to assaults or batteries. There is clearly no touching in the Air Zooka situation, and I suggest the issue is no more about directness than if SW had thrown the contents of a glass of water at MT. Rather, the question is whether the force created by the blast of air 'counts' in the same way as that created by the water. If the essence of battery is the violation of the bodily integrity of MT (at however minor a level) through the actions of SW, then we might ask what is the difference. Both could interfere with MT's interests in a similar way, by, for example, leaving MT's hair out of place.

So maybe there is at least the start of a sensible argument that a blast from an Air Zooka is capable, in principle, of constituting a battery, in that it could involve the unlawful application of force to a complainant. However, there are problems with this. The first might be to do with the principle of 'fair labelling', which suggests that what we call an offence matters, in that it should convey an adequate sense of the moral meaning of the conduct in question, and should differentiate it from relevantly different conduct (hence, for example, the label 'manslaughter' connotes something different from 'murder'). This does not require the names or definitions of offences to correspond directly and absolutely with public understandings of the relevant terms (those public understandings are probably contested anyway). But it is right to ask whether reasonable (even technical) understandings of 'battery' would include within the term being blasted with air without actually being touched? Perhaps such an interpretation is too expansive. Secondly, what might be the implications of non-touch violations constituting batteries? Would this mean that when A breathes on B, the basic elements of battery would be made out (with lawfulness depending on whether there was consent)? What about the impact of sound waves and the force they exert on the eardrum? Would it be possible for A to inflict a battery on B by playing loud music to which A knows that B objects? Surely not. The idea of the non-touch battery is potentially so broad as to be empty of useful meaning.

Now clearly none of this is ever likely to trouble the courts, but it's the kind of thing which occasionally appeals to criminal law examiners. And it is a reminder that there are sometimes interesting things happening at the margins of offences. So, if you are setting a criminal law examination and struggling for a last question, or if on your next shopping trip you hear a popping sound and your hair is then unexpectedly ruffled by what seems like a sudden and fleeting gust, then have this one on me.

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One comment

  1. […] Fitzpatrick, a law academic at York Law School, has blogged on Battery and the ‘touching’ requirement, in a criminal law context.  He discusses principles which translate well to the tort of […]

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