Assault — common mistakes

In problem questions, always apply the three-part test for assault: 1) Did the defendant perform a positive act? 2) Did this cause the claimant to reasonably apprehend immediate unlawful force? 3) Did the defendant intend to cause this apprehension or were they reckless? Use case law like R v Ireland for words/silence and Tuberville v Savage for negating words to support your analysis.

Yes. The test is about 'apprehension' of force, not 'fear'. A claimant simply needs to reasonably believe that force is about to be applied to them. A trained martial artist who is not scared by someone shaking a fist at them can still apprehend that force is imminent and therefore can still be a victim of assault.

Yes, it can be. The key is whether it was reasonable for the claimant to apprehend force. If the claimant believed the gun was loaded, and a reasonable person in their position would also have believed it, then an assault has been committed. The defendant's subjective inability to carry out the threat is irrelevant if the claimant's apprehension was reasonable.

While they are very similar, their purpose differs. Tort law aims to compensate the victim (claimant), whereas criminal law aims to punish the offender (defendant). The standard of proof is also different: tort requires proof on the 'balance of probabilities', while criminal law requires proof 'beyond a reasonable doubt'. For your A-Level exam, focus on the tortious definition unless the question specifies criminal law.