Kevin Marland v Director of Public Prosecutions

Battery requires an intentional or reckless application of unlawful force. Physical contact which is generally acceptable in ordinary daily life may fall outside the offence through implied or deemed consent. That doctrine does not arise where the complainant did not consent to physical restraint and the defendant knew of that non-consent. A defendant cannot ordinarily override actual non-consent by asserting that the contact was in the complainant’s best interests. Where magistrates make factual findings that are open to them, and find that the defendant intentionally applied unlawful force knowing that the complainant did not consent, the conviction is not irrational and the intent requirement is satisfied.

The appellant was convicted by Bristol Magistrates’ Court of assault by beating, contrary to section 39 of the Criminal Justice Act 1988, and received a conditional discharge. He had admitted grabbing his partner by both shoulders and moving her towards his car because she was intoxicated, while accepting that she did not want to be grabbed or moved.

The magistrates stated a case under section 111 of the Magistrates’ Courts Act 1980. The High Court was asked whether they were entitled to convict on the appellant’s explanation that he acted to protect her, and after rejecting the contention that the conduct fell within implied consent in daily life or the parties’ relationship. The issues were implied consent, irrationality of the factual conclusion, and the mental element of battery.

1. Appeal dismissed. The magistrates were entitled, on the evidence and their findings, to convict the appellant of battery.
2. Battery involves an intentional or reckless application of unlawful force. Force is unlawful where there is no lawful excuse, including actual or implied consent, self-defence or defence of another. The breadth of the implied-consent exception is governed by the distinction between generally acceptable contact in ordinary life and physical restraint.
3. On the facts found, the appellant grabbed the complainant by both shoulders, knew that she did not consent, and moved her towards his car against her will. This was physical restraint, not a trivial touch, an inadvertent contact, or contact merely intended to attract attention. The appellant’s conduct was therefore outside the category of contact to which a person may be deemed to consent. His stated concern for her welfare could not convert known actual non-consent into implied consent. A different case might involve lawful conduct such as preventing a person from jumping from a high building, but there was no evidence of defence of another here.
4. The magistrates’ reasons were adequate. Their findings that the appellant intentionally applied unlawful force, knowing that the complainant did not consent, were factual conclusions open to them and were not Wednesbury unreasonable. McMillan v Crown Prosecution Service was distinguishable because the contact there was accepted as not against the woman’s will and was used to steady her for her safety.
5. The argument that intent had not been proved was misconceived. The required mental element was intent to apply unlawful force, and the magistrates expressly linked intention to the appellant’s knowledge of non-consent and the unlawfulness of the conduct. The answer to the case stated was accordingly that the magistrates were entitled to convict.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The court answered that the magistrates were entitled, on the evidence and their findings, to convict the appellant of battery.
• Bristol Magistrates’ Court: On 7 February 2022 the appellant was convicted of assault by beating and given a conditional discharge.