Correct on the date of publication - 16 March 2026
Question:
In cases where a suspect spits at someone, which offence would apply – section 39 of the Criminal Justice Act 1988 (assault or battery) or section 4 of the Public Order Act 1986 (fear or provocation of violence) and, does it depend on whether the spit makes contact with the victim, and, whether it hits their skin or clothing?
Answer:
In short, section 39 of the Criminal Justice Act 1988 creates two offences and the critical issue is whether the spitting amounts to the application of unlawful force (battery) or causes the victim to apprehend immediate unlawful force (assault) –
- Common assault – is any intentional or reckless act which causes a person to apprehend immediate unlawful violence or personal violence.
- Battery – is any intentional or reckless infliction of unlawful force or personal violence.
Spitting can alternatively be an offence of battery. Where a person intentionally or recklessly spits and the spit hits a person, whether the spit lands on the person’s skin or clothing, this constitutes unlawful force or personal violence for the purposes of this offence and the battery offence can be considered.
Although the word 'assault' is popularly used in a broad sense to mean some form of physical contact between the perpetrator and the victim, such interpretation is not correct in law. It is important to distinguish between the two offences, especially when laying an information. The inclusion of both offences in the same charge is bad for duplicity.
Assault or Battery?
Whether assault or battery is the appropriate charge will depend on the nature of the spitting in a case context.
Case law has confirmed that application of force can be directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender: Fagan v Metropolitan Police [1969] 1 Q.B. 439, DC.
Spitting can be a weapon or instrument controlled by the action of the offender (see R. v Lynsey [1995] 2 Cr. App. R. 667, CA). In Misalati [2017] EWCA 2226 the appellant spat towards the complainant. The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.
For battery, the application of force can be direct or indirect. Therefore, in most cases, the application of force to clothing will amount to battery, involving force to another person that has directly or indirectly been applied through clothing.
The recent case of R v Proctor (Alex) [2021] EWCA Crim 808 confirms a charge for battery where spit landed on the victim’s jeans was appropriate.
The seriousness of spitting as an assault is reflected in sentencing, particularly when directed at emergency workers, with courts noting its unpleasant nature and the fear of disease transmission caused.
Public order
Depending on the circumstances, offences under the Public Order Act 1986 (POA) could also be considered:
• section 4 - fear or provocation of violence.
• section 4A - use threatening / abusive / insulting words / behaviour to cause intentional harassment, alarm or distress.
Note, although these offences may be committed in a public or private place, they cannot be committed where the person is inside a dwelling and the other person is inside the same dwelling, see each section for specifics.
In the context of public order offences, if the spitting is done in a threatening or abusive manner with the requisite intent and results in the necessary consequence (For example, fear of violence for section 4, or harassment/alarm/distress for section 4A), either offence could potentially be made out however, as can be seen from the authorities relating to assault and battery, spitting is normally prosecuted under those offences.
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