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Home » Legal Resources » Legal Guidance » L to O » Offences Against The Person

Offences against the Person, Incorporating the Charging Standard

This guidance was last updated 16 October 2009.

Code for Crown Prosecutors - Considerations

1) For general guidance concerning charging guidance refer to Charging Standard below in this section.

2) Think carefully about the interests of the victim when deciding whether or not it is in the public interest to proceed. Where the victim was in the process of committing an offence at the time of the assault also refer to Self Defence and the Prevention of Crime elsewhere in the Legal Guidance when reviewing the case.

3) CPS Policy on domestic violence and race related issues will often be relevant. See Domestic Violence and Racist and Religious Crime- CPS Prosecution Policy elsewhere in the Legal Guidance.

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Harassment

4) For guidance on harassment. Refer to Protection from Harassment Act 1997 elsewhere in the Legal Guidance.

Charging Standard - Offences Against The Person

5) There is no longer a separate and free-standing charging standard for Offences Against the Person. Instead, the Charging Standard, having been revised, is now contained within this chapter.

Purpose

6) This standard covers the following offences:

  • Common assault, contrary to section 39 Criminal Justice Act 1988;
  • Assault upon a constable in the execution of his duty, contrary to section 89 Police Act 1996;
  • Assault with intent to resist arrest, contrary to section 38 of the Offences Against the Person Act 1861 ("the Act");
  • Assault occasioning actual bodily harm, contrary to section 47 of the Act;
  • Unlawfully wounding/inflicting grievous bodily harm, contrary to section 20 of the Act;
  • Unlawful wounding/inflicting grievous bodily harm with intent, contrary to section 18 of the Act; and
  • Attempted murder, contrary to section 1(1) Criminal Attempts Act 1981.

General Principles: Charging Standard

7) This standard contained in this chapter is designed to assist prosecutors in selecting the most appropriate charge, in the light of the facts that can be proved, at the earliest possible opportunity.

8) The standard set out below:

  • Should not be used in the final determination of any investigatory decision, such as the decision to arrest;
  • Does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning;
  • Does not override the principles set out in the Code for Crown Prosecutors and in particular paragraph 7.1 of the Code by which prosecutors are to select charges which reflect the seriousness and extent of the offending and provide the Court with adequate sentencing powers;
  • Does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest;
  • Does not override the need for each case to be considered on its individual merits nor fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.

Common Assault, contrary to section 39 Criminal Justice Act 1988

9) An offence of common assault is committed when a person either assaults another person or commits a battery:

  • An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force. (Archbold 19-166 and 19-172)
  • A battery is committed when a person intentionally and recklessly applies unlawful force to another. (Archbold 19-166a and 19-174 to 19-175)

10) It is a summary offence, which carries a maximum penalty of six months imprisonment and/or fine not exceeding the statutory maximum. However, if the requirements of section 40 Criminal Justice Act 1988 are met, then common assault can be included as a count on an indictment. Refer to Summary offences and the Crown Court (Criminal Justice Act 1988 sections 40 and 41; Crime and Disorder Act 1998 s 51 and sch.3 para.6 elsewhere in the Legal Guidance.

11) Where there is a battery the defendant should be charged with 'assault by beating.' (DPP v Little (1992) 1 All ER 299).

12) In law, the only factors that distinguish common assault from assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, are the degree of injury that results and the sentence available to the sentencing court.

13) Where battery results in injury, a choice of charge is available. The Code for Crown Prosecutors recognises that there will be factors, which may properly lead to a decision not to prefer or continue with the gravest possible charge. Thus, although any injury that is more than transient or trifling can be classified as actual bodily harm, the appropriate charge will be contrary to be section 39 where injuries amount to no more than the following:

  • Grazes;
  • Scratches;
  • Abrasions;
  • Minor bruising;
  • Swellings;
  • Reddening of the skin;
  • Superficial cuts;
  • A 'black eye'.

14) You should always consider the injuries first and in most cases the degree of injury will determine whether the appropriate charge is section 39 or section 47.

15) There will be borderline cases, such as where an un-displaced broken nose has resulted. Generally, when the injuries amount to no more than those described, at sub-paragraph 34 below, common assault will be the appropriate charge.

16) However, there may be cases where the actual injuries suffered by a victim would normally amount to common assault, but due to the presence of serious aggravating features, they could more appropriately be charged as actual bodily harm contrary to section 47 Offences Against the Person Act 1861.

17) Such serious aggravating features would include:

a) the nature of the assault, such as the use of a weapon, biting, gouging or kicking of a victim whilst on the ground, or strangulation which is more than fleeting and which caused real fear to the victim; or

b) the vulnerability of the victim, such as when the victim is elderly, disabled or a child assaulted by an adult (so that where an assault causes any of the injuries referred to in sub-paragraph (vii), other than reddening of the skin, the charge will normally be assault occasioning actual bodily harm, although prosecutors must bear in mind that the definition of assault occasioning actual bodily harm requires the injury to be more than transient and trifling); or

c) other circumstances when though the injuries are relatively minor the existence of aggravating features mean that the sentencing powers of the court may not be adequate. Refer to the section on Defences to assaults below.

18) Where a charge contrary to section 47 has been preferred, the acceptance of a plea of guilty to common assault will rarely be justified in the absence of a significant change in circumstances that could not have been foreseen at the time of review.

19) Common assault is capable of being racially/religiously aggravated under the Crime and Disorder Act 1998. The racially/religiously aggravated version of section 39 is an either way offence. Refer to Prosecuting cases of Racist and Religious Crime elsewhere in the Legal Guidance.

Assault on Constable in the execution of his/her duty, contrary to section 89(1) Police Act 1996

Refer to (Archbold 19-265) for the law

20) The offence is committed when a person assaults either:

  • a constable acting in the execution of his or her duty; or
  • a person assisting a constable in the execution of his or her duty.

21) It is a summary only offence, which carries a maximum penalty of six months' imprisonment and/or a fine not exceeding the statutory maximum.

22) If an assault on a constable results in an injury as described in paragraph 1(vii), a prosecution under section 89(1) Police Act 1996 will be appropriate, provided that the officer is acting in the execution of his or her duty.

23) Where the evidence that the officer was acting in execution of his or her duty is insufficient, but proceedings for an assault are nevertheless warranted, the appropriate charge will be under section 39.

24) The fact that the victim is a police officer is not, in itself, an exceptional reason for charging an offence contrary to section 47 when the injuries are minor. When the injuries are such that an offence contrary to section 47 would be charged in relation to an assault on a member of the public, section 47 will be the appropriate charge for an assault on a constable.

Assault on a Prison Officer

25) Prison officers, while acting as such, have all the powers, authority, protection and privileges of a constable by virtue of Section 8 of the Prison Act 1952.

26) Code for Crown Prosecutors makes clear that prosecutors must select charges which reflect the seriousness and extent of offending. All things being equal, where the available evidence affords the prosecutor a choice between Section 39 of the Criminal Justice Act 1988 (common assault) and Section 89 of the Police Act 1996, the latter will normally be the more appropriate charge. Where there is evidence of racist or religious aggravation, offences contrary to the provisions of the Crime and Disorder Act 1998 may be appropriate, and prosecutors should consider the guidance on Prosecuting cases of Racist and Religious Crime.

Assault on an Immigration Officer

27) On 31 January 2008, the UK Borders Act 2007 introduced a new section 22 offence of assaulting an immigration officer.

28) The Offence is summary only and carries a term of imprisonment of 6 months.

29) An immigration officer is defined within section 1 of the Act as someone "designated" by the Secretary of State.

30) Prosecutors should apply the same principles to offences under s22 as they would apply to offences of assaulting a police officer (see paragraph 20 above). However please note that the section does not require the immigration officer to be assaulted "in the execution of his duty" as with the corresponding police officer offence.

Assaults on Emergency Workers and Public Servants

31) There is no separate offence for assaulting a public servant or emergency worker, although there are offences of obstructing or hindering emergency workers under the Emergency Workers (Obstruction) Act 2006 (in force 20 February 2007). See  Public Order Offences incorporating the Charging Standard, elsewhere in the Legal Guidance.

32) Any assault that is committed on public servants and emergency workers must be treated seriously. Paragraph 5.9(d) of the Code for Crown Prosecutors states that an aggravating feature of any offence is whether:

"... the offence was committed against a person serving the public (for example, a police or prison officer, or a nurse)".

33) This is reflected in the Sentencing Guidelines Council guidance (issued in December 2004) on Overarching Principles: Seriousness. The fact that an offence was committed against those providing a service to the public is identified as a 'serious aggravating factor'.

34) Other factors that have been identified in the 'Overarching Principles' guideline that may be relevant in this context are evidence of offenders acting as part of a group or a gang, and any evidence of planning or pre-meditation. If any of these factors are present in a particular case, it must be drawn to the attention of the court.

35) Current sentencing practice indicates that custody is the appropriate starting point for a person who assaults a public servant:

  • R v McNally 2000 1 Cr. App. R (S) 533 - the appellant was attending a hospital with his son when he became involved in an argument with a doctor and assaulted him with one punch. He had no previous convictions and was charged with 'ABH'. The Court of Appeal held that 6 months imprisonment was the appropriate sentence, and reiterated that such circumstances seriously aggravated the offence.
  • R V Eastwood [2002] 2 Cr. App. R. (S) 72 (at 318) - the appellant was drunk and in A&E when he assaulted a nurse during the course of an X-ray. The nurse suffered torn ligaments in her hand, and he was charged with 'ABH'. The Court found that in such circumstances, the starting point after trial was between 21 - 24 months imprisonment with a sentence of 15 months imprisonment suitable after guilty plea.

36) Accordingly, there is strong public interest in prosecuting such cases once the evidential test is met.

37) Prosecutors are reminded of the current Mode of Trial guidelines in this regard. These state that one of the aggravating features in any assault case will be violence towards those who work with members of the public.

NHS Memorandum of Understanding

38) On 1 November 2006, the CPS signed a Memorandum of Understanding with the NHS Security Management Service (MoU). A revised version of the MoU, NHS CPS Memorandum of Understanding, published in 2008, continues to emphasise the CPS' commitment to work with the NHS to tackle physical assault or abuse of NHS staff, and provides mechanisms to that effect. It is also a public statement of the seriousness with which any offence committed on NHS staff while on duty will be treated by Crown Prosecutors.

39) Reference should be made to this MoU and any local Service Level Agreements that have been agreed when a member of NHS staff has been obstructed or hindered in an emergency circumstance.

Assault with intent to resist arrest, contrary to section 38 Offences Against the Person Act 1861

Refer to (Archbold 19-255) for the law

40) prevent the lawful apprehension/detention of himself/herself or another, for any offence.

41) It is an either way offence, which carries a maximum penalty on indictment of two years' imprisonment and/or an unlimited fine. Summarily, the maximum penalty is six months' imprisonment and/or a fine not exceeding the statutory maximum.

42) A charge contrary to section 38 may properly be used for assaults on persons other than police officers, for example store detectives, who may be trying to apprehend or detain an offender.

43) When a police officer is assaulted, a charge under section 89(1) will be more appropriate unless there is clear evidence of an intent to resist apprehension or prevent detention and the sentencing powers available under section 89(1) or for common assault are inadequate. This will rarely be the case when injuries are minor and inflicted in the context of a struggle.

44) It is not bad for duplicity to charge, "resist or prevent the lawful apprehension or detainer" etc in the one count: Rule 7 of the Indictments Rules 1971, (Archbold 1-228).

Assault occasioning actual bodily harm, contrary to section 47 Offences Against the Person Act 1861

Refer to (Archbold 19-190) for the law

45) The offence is committed when a person assaults another, thereby causing actual bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling: (R v Donovan 25 Cr. App. Rep. 1, CCA). It is an either way offence, which carries a maximum penalty on indictment of five years' imprisonment and/or an unlimited fine not exceeding the statutory maximum.

46) As stated above, the factors in law that distinguish a charge under section 39 from a charge under section 47 are the degree of injury resulting and the sentencing powers available to the sentencing court. For instances where common assault will be the appropriate charge. Where the injuries exceed those that can suitably be reflected by a common assault a charge of assault occasioning actual bodily harm should normally be preferred. By way of example, the following injuries should normally be prosecuted under section 47:

  • loss or breaking of tooth or teeth;
  • temporary loss of sensory functions, which may include loss of consciousness. (T v Director of Public Prosecutions, [2003] Crim. L. R. 622)
  • extensive or multiple bruising;
  • displaced broken nose;
  • minor fractures;
  • minor, but not merely superficial, cuts of a sort probably requiring medical treatment (e.g. stitches);
  • psychiatric injury that is more than mere emotions such as fear, distress or panic. In any case where psychiatric injury is relied upon, as the basis for an allegation of assault occasioning actual bodily harm, and the matter is not admitted by the defence, then expert evidence must be called by the prosecution. (R v Chan-Fook, 99 Cr. App. R. 147, CA).

47) A verdict of assault occasioning actual bodily harm may be returned on proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault.

48) The test of recklessness is as per 'R v Cunningham' (Archbold 19-167).

49) This offence is capable of being racially aggravated under the Crime and Disorder Act 1998. Refer to Prosecuting cases of Racist and Religous Crime elsewhere in the Legal Guidance.

Unlawful wounding/inflicting grievous bodily harm, contrary to section 20 of the Act.

Refer to (Archbold 19-200) for the law

50) The offence is committed when a person unlawfully and maliciously, either:

  • wounds another person; or
  • inflicts grievous bodily harm upon another person.

51) It is an either way offence, which carries a maximum penalty on indictment of five years' imprisonment and/or an unlimited fine. Summarily, the maximum penalty is six months' imprisonment and/or a fine not exceeding the statutory maximum.

52) Wounding means the breaking of the continuity of the whole of the outer skin, or the inner skin within the cheek or lip. It does not include the rupturing of internal blood vessels (Archbold 19-212).

53) The definition of wounding may encompass injuries that are relatively minor in nature, for example a small cut or laceration. An assault resulting in such minor injuries should more appropriately be charged contrary to section 47.

54) An offence contrary to section 20 should be reserved for those wounds considered to be serious (thus equating the offence with the infliction of grievous, or serious, bodily harm under the other part of the section).

55) Grievous bodily harm means serious bodily harm (Archbold 19-206). It is for the jury to decide whether the harm is serious. However, examples of what would usually amount to serious harm include:

  • injury resulting in permanent disability or permanent loss of sensory function;
  • injury which results in more than minor permanent, visible disfigurement; broken or displaced limbs or bones, including fractured skull;
  • compound fractures, broken cheek bone, jaw, ribs, etc;
  • injuries which cause substantial loss of blood, usually necessitating a transfusion;
  • injuries resulting in lengthy treatment or incapacity;
  • psychiatric injury. As with assault occasioning actual bodily harm, appropriate expert evidence is essential to prove the injury.

56) In accordance with the recommendation in (R v McCready (1978) 1 WLR 1376), if there is any reliable evidence that a sufficiently serious wound has been inflicted, then the charge under section 20 should be of unlawful wounding, rather than of inflicting grievous bodily harm. Where both a wound and grievous bodily harm have been inflicted, discretion should be used in choosing which part of section 20 more appropriately reflects the true nature of the offence.

57) The prosecution must prove under section 20 that either the defendant intended, or actually foresaw, that the act might cause some harm. It is not necessary to prove that the defendant either intended or foresaw that the unlawful act might cause physical harm of the gravity described in section 20. It is enough that the defendant foresaw some physical harm to some person, albeit of a minor character, might result: (R v Savage; DPP v Parmenter [1992] 1 A.C 699)

58) This offence is capable of being racially/religiously aggravated under the Crime and Disorder Act 1998. Refer to Prosecuting cases of Racist and Religious Crime elsewhere in the Legal Guidance.

Wounding/causing grievous bodily harm with intent, contrary to section 18 Offences Against the Person Act 1861

Refer to (Archbold 19-199) for the law

59) The offence is committed when a person unlawfully and maliciously, with intent to do some grievous bodily harm, or with intent to resist or prevent the lawful apprehension or detainer of any other person, either:

  • wounds another person; or
  • causes grievous bodily harm to another person.

60) It is an indictable only offence, which carries a maximum penalty of imprisonment for life.

61) For the definition of wounding and grievous bodily harm, see paragraphs above.

62) The distinction between charges under section 18 and section 20 is one of intent.

63) The gravity of the injury resulting is not the determining factor, although it may provide some evidence of intent.

64) When charging an offence involving grievous bodily harm, consideration should be given to the fact that a section 20 offence requires the infliction of harm, whereas a section 18 offence requires the causing of harm. This may be of some significance when considering alternative verdicts, see section 9 below. However this distinction has been greatly reduced by the decision of the House of Lords in R v Ireland; R v Burstow [1998] A.C 147 (Archbold 19-208).

65) Factors that may indicate the specific intent include:

  • a repeated or planned attack;
  • deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack;
  • making prior threats;
  • using an offensive weapon against, or kicking the victim's head.

66) The evidence of intent required is different if the offence alleged is a wounding or the causing of grievous bodily harm with intent to resist or prevent the lawful apprehension or detainer of any person. This part of section 18 is of assistance in more serious assaults upon police officers, where the evidence of an intention to prevent arrest is clear, but the evidence of an intent to cause grievous bodily harm is in doubt. (Archbold 19-213 to 19-214).

67) It is not bad for duplicity to indict for wounding with intent to cause grievous bodily harm or to resist lawful apprehension in one count, although it is best practice to include the allegations in separate counts. This will enable a jury to consider the different intents and the court to sentence on a clear basis of the jury's finding.

Attempted murder, contrary to section 1(1) Criminal Attempts Act 1981

Refer to (Archbold 19) for the law

68) For guidance on the substantive offence of murder. Refer to Homicide, Murder and Manslaughter elsewhere in the Legal Guidance.

69) The offence is committed when a person does an act that is more than merely preparatory to the commission of an offence of murder, and at the time the person has the intention to kill.

70) It is an indictable only offence, which carries a maximum penalty of imprisonment for life.

71) Unlike murder, which requires an intention to kill or cause grievous bodily harm, attempted murder requires evidence of an intention to kill alone. This makes it a difficult allegation to sustain and careful consideration must be given to whether on the facts a more appropriate charge would be section 18. Another possible charge may be section 16 making threats to kill, see guidance below on Other Relevant Offences.

72) The courts will pay particular attention to counts of attempted murder and justifiably will be highly critical of any such count unless there is clear evidence of an intention to kill.

73) When considering the choice of charge, prosecutors should consider what alternative verdicts may be open to a jury on an allegation of attempted murder. Section 6(3) Criminal Law Act 1967 applies. Prosecutors should note the judgement in R v Morrison [2003] 1 W.L.R.1859, in which, on a single count of attempted murder, the Court of Appeal held that the trial judge had been right to leave to the jury an alternative count of attempting to cause grievous bodily harm with intent, because a defendant could not intend to kill without also intending to cause grievous bodily harm. If an alternative count can be left to the jury, prosecutors should not normally add it to the indictment, but should draw to the attention of counsel that the alternative count may be available. See paragraph 85 below.

74) It should be borne in mind that the actions of the defendant must be more than merely preparatory and although words and threats may provide prima facie evidence of an intention to kill, there may be doubt as to whether they were uttered seriously or were mere bravado.

75) Evidence of the following factors may assist in proving the intention to kill:

  • calculated planning;
  • selection and use of a deadly weapon;
  • threats (subject to paragraph 74 above);
  • severity or duration of attack;
  • relevant admissions in interview.

Alternative Verdicts

76) In certain circumstances, it is possible for a jury to find the accused not guilty of the offence charged, but guilty of some other alternative offence. The general provisions are contained in section 6(3), Criminal Law Act 1967, and are supplemented by other provisions that relate to specific offences. (Archbold 4-455 to 4-456). For summary only offences please refer to Summary offences and the Crown Court elsewhere in the Legal Guidance

77) For offences against the person, the following alternatives may be found by a jury:

Causing grievous bodily harm with intent, contrary to section 18 of the Act:&

  • Attempting to cause grievous bodily harm with intent.
  • Inflicting grievous bodily harm, contrary to section 20 of the Act.
  • Unlawful wounding, contrary to section 20 of the Act.

Wounding with intent, contrary to section 18 of the Act:

  • Attempting to wound with intent
  • Unlawful wounding, contrary to section 20 of the Act.
  • Assault occasioning actual bodily harm, contrary to section 47 of the Act.

Inflicting grievous bodily harm, contrary to section 20 of the Act:

  • Assault occasioning actual bodily harm, contrary to section 47 of the Act.

Unlawful wounding, contrary to section 20 of the Act:

  • Assault occasioning actual bodily harm, contrary to section 47 of the Act.

Actual Bodily harm contrary to section 47 of the Act:

  • Common Assault contrary to s39 Criminal Justice Act 1988

78) In the case of racially/religiously aggravated section 20 and racially/religiously aggravated section 47, a jury can return an alternative verdict of the unaggravated offence.

79) On the 31 March 2005, Section 11 of the Domestic Violence, Crime and Victims Act 2004 amended section 6(3) of the Criminal Law Act 1967. This enabled a defendant to be convicted, as an alternative to a count on the indictment, of a summary offence to which section 40 of the Criminal Justice Act 1988 applies.

80) The most likely application of section 11 will be in assault cases. This is because taking a motor vehicle or other conveyance without authority is provided as a statutory alternative to theft and aggravated vehicle taking by virtue of sections 12(4) and 12A(5) of the Theft Act 1968. In addition, criminal damage is classified as an offence triable either way, albeit triable only summarily in the circumstances prescribed by section 22 of the Magistrates Courts' Act 1980, and thus falls within the jurisdiction of the Crown Court (see R v Fennell [2002] 2 Cr.App.R 318, CA).

81) Although there is the option of including common assault (or other offence to which section 40 of the 1988 Act applies) on the indictment, it may not always be desirable to do so as this can induce a jury to convict of the lesser offence when the right outcome would be conviction of the more serious one, or outright acquittal.

82) The more appropriate position must be that such a verdict should be left available to the trial judge to direct the jury accordingly, if the facts show that such a verdict should be available.

83) It is essential, however, that the charge that most suits the circumstances of the case is always preferred. It will never be appropriate to charge a more serious offence in order to obtain a conviction (whether by plea or verdict) to a lesser offence.

84) There is authority to support the proposition that a jury may convict of wounding, contrary to section 20 of the Act, as an alternative to a count of causing grievous bodily harm with intent, contrary to section 18 of the Act: (R v Wilson, R v Jenkins & Jenkins (1983) 77 Cr. App. R. 319 H.L); (R v Mandair [1994] 2 W.L.R. 1376 H.L).

85) Notwithstanding that authority, prosecutors should nevertheless consider including a separate count on the indictment alleging wounding, contrary to section 20, where as a matter of law, s. 20 was available as an alternative to s. 18, and where the application of s. 6(3) of the 1967 Act meant that the alternative would be available even if s. 20 were not alleged, it was better practice for the s. 20 count to be included on the face of the indictment. (R v Lahaye [2006] 1 Cr App R 11)

Defences to assaults

86) Consent (Archbold 19-180).

87) Lawful correction/reasonable chastisement of a child (Archbold 19-185). NB Section 58 of the Children Act 2004 came into force on 15 January 2005. It removed the availability of the reasonable chastisement defence for parents or adults acting in loco parentis where the accused is charged with wounding, causing grievous bodily harm, assault occasioning actual bodily harm or cruelty to persons less than 16 years of age. However, the reasonable chastisement defence remains available for parents and adults acting in loco parentis against charges of common assault.

88) It should be noted that section 58 of the Children Act 2004, which came into force on 15 January 2005, limits the availability of the lawful correction defence to common assault, contrary to section 39 Criminal Justice Act 1988.

89) Self-defence (Archbold 19-41 to 19-45).

90) Defence of property (Archbold 19-47).

91) Prevention of crime (Archbold 19-188).

92) Prosecutors must consider all assaults in the context in which they were allegedly committed. There will be cases in which the surrounding circumstances will be of help in deciding whether to bring criminal proceedings. Particular care must be taken in dealing with cases of assault where the allegation is made by a victim who was, at the time, engaged in criminal activity himself. For instance, a burglar who claims to have been assaulted by the occupier of the premises concerned.

93) If the defendant alleges that he was acting in self-defence, preventing crime or making an arrest, the prosecutor must consider whether the defendant used reasonable force. Where the use of force and the amount of force used is reasonable in the circumstances as the assailant honestly believes them to be, the assailant has an absolute defence and charges relating to the assault should not be brought

94) The law on self defence arises both under the common law defence of self-defence and the defences provided by section 3(1) of the Criminal Law Act 1967 (use of force in the prevention of crime or making arrest). It has recently been clarified by section 76 of the Criminal Justice and Immigration Act 2008.

95) 95) In assessing the reasonableness of the force used, both common law and the Criminal Law Act 1967 have required the court to ask the following two questions:

  • was the force used justified in the circumstances? (i.e. was there a need for any force at all?); and
  • was the force used excessive in the circumstances?

96) The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be. To that extent it is a subjective test. There is, however, an objective element to the test, as the court must then go on to ask whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive. (Archbold 19-42).

97) Section 76 of the Criminal Justice and Immigration Act 2008 provides clarification of the operation of the existing common law and statutory defences. It should be noted that section 76 neither abolishes the common law and statutory defences nor does it change the current test that allows the use of reasonable force.

98) Section 76 (3) confirms that the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be. Subsections (4) (6) reiterate the common law principle that the test of reasonableness contains both subjective and objective elements.

99) Section 76 (4) provides that where the defendant claims to have a particular belief as regards the existence of any circumstances, the reasonableness or otherwise of that belief is relevant to the question whether the defendant genuinely held it. However, if it is established that the defendant did genuinely hold the belief he may rely on that belief to establish the force used was reasonable whether or not it was a mistaken belief and if it was mistaken, whether or not the mistake was a reasonable one to have made i.e. the crucial test at this stage is whether the belief was an honest one, not whether it was a reasonable one. However, the more unreasonable the belief, the less likely it is that the court will accept it was honestly held.

100) Section 76 (5) provides that the defendant cannot rely on a mistaken belief which is attributable to voluntary intoxication.

101) Section 76 (6) provides that the force used cannot be regarded as reasonable if it is disproportionate even in the circumstances as the defendant believed them to be.

102) Section 76 (7) sets out two considerations that should be taken into account when deciding whether the force used was reasonable. Both are adopted from existing case law. They are:

  • that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action;
  • that evidence of a persons having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

103) This section adopts almost precisely the words of Lord Morris in (Palmer v R [1971] A.C. 814) which emphasise the difficulties often facing someone confronted by an intruder or defending himself against attack:

104) If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken

105) Section 76 (8) states that subsection (7) does not prevent other relevant matters to be taken into account when considering whether the force used was reasonable.

106) Section 76 (9) confirms that the section is intended to clarify not abolish the operation of the existing common law and Criminal Law Act defences.

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Other Relevant Offences

107) Whilst the charging standard provides guidance on a range of frequently experienced offences against the person, there are also other offences that may be relevant, including the following:

108) Attempting to choke, suffocate or strangle with intent to enable the commission of an indictable offence, contrary to section 21 Offences Against the Person Act 1861. (Archbold 19-215 to 19-218);

109) Causing to be taken or administering a drug with intent to enable the commission of an indictable offence, contrary to section 22 Offences Against the Person Act 1861. (Archbold 19-219 to 19-222);

110) Administering poison or noxious thing thereby endangering life or inflicting grievous bodily harm, contrary to section 23 Offences Against the Person Act 1861. (Archbold 19-223 to 19-231);

111) Administering poison or noxious thing with intent to injure, aggrieve or annoy, contrary to section 24 Offences Against the Person Act 1861. (Archbold 19-223 to 19-231);

112) Causing bodily injury by explosives, contrary to section 28 Offences Against the Person Act 1861. (Archbold 19-235 to 19-240);

113) Unlike offences under the Explosive Substances Act 1883, causing bodily injury contrary to section 28 Offences Against the Person Act 1861 does not require the consent of the Attorney General. However, prosecutors should not charge the section 28 offence simply to avoid obtaining the Attorney General's consent. Prosecutors should consider whether on the facts of the case there is an appropriate alternative offence before seeking the Attorney General's fiat. For guidance as to the Explosive Substances Act, refer to Explosives elsewhere in the Legal guidance.

114) Sending, throwing or using explosive or corrosive substance or noxious thing with intent to do grievous bodily harm, contrary to section 29 Offences Against the Person Act 1861. (Archbold 19-232 to 19-234);

115) Threats to kill, contrary to section 16 Offences Against the Person Act 1861. (Archbold 19-124 to 19-129);

116) Threats can be calculated and premeditated, or said in the heat of the moment. The defendant does not have to have the intention to kill but there has to be an intent that the person to whom the threat has been issued would fear it would be carried out. Where it is doubtful whether the threat carried the necessary intent a charge under section 4 Public Order Act 1986 may be appropriate. Refer also to Public Order Offences incorporating the Charging Standard elsewhere in the Legal guidance.

117) The threat accompanies an assault, adding a charge under section 16 will normally be unnecessary. There may be an exception where the severity of the threat is not matched by the physical injury sustained in the assault. The offence will be particularly appropriate if there has been no assault or if an assault has been prevented, yet the person to whom the threat was made was given real cause to believe it would be carried out.

Kidnapping (Archbold 19-333 to 19-348)

118) There are four elements to this common law offence:

  • the taking or carrying away of one person by another;
  • by force or fraud;
  • without the consent of the person so taken or carried away; and
  • without lawful excuse.

119) Often the kidnapping will be followed by the commission of further offences of sexual or aggravated assault. For kidnapping of children see (Archbold 19-334). For the offence of Child Abduction (Archbold 19-308). Regardless of the severity of any act that follows (with the possible exception of murder), kidnapping is such a grave offence that it will be usual to reflect it with a count in the indictment.

False imprisonment (Archbold 19-331 to 19-348)

120) False imprisonment is a common law offence involving the unlawful and intentional or reckless detention of the victim. An act of false imprisonment may amount in itself to an assault. If a separate assault accompanies the detention this should be reflected in the particulars of the indictment.

121) If the detention was for the purpose of committing another indictable offence, and such an offence was committed, a count for the substantive offence will usually be enough. Where the detention was for a period of several hours, or days, then it will be proper to reflect the unlawful detention with a count for false imprisonment.

Ill-treatment or neglect, contrary to section 44 of the Mental Capacity Act 2005

122) From 1 April 2007, a person will commit an offence if he/she ill-treats or neglects a person who lacks mental capacity. The offence is either way, and carries a maximum penalty on indictment of 5 years imprisonment and/or a fine.

123) A person lacks mental capacity if at the material time, he/she is unable to make a decision for himself/herself because of an impairment of, or a disturbance in the functioning of, the mind or brain (section 2(1)).

124) It is immaterial if the impairment or disturbance is permanent or temporary (section 2(2)).

125) A lack of capacity cannot be established merely by reference by a person's age or appearance, or by a condition, or an aspect of behaviour, which might lead others to make unjustified assumptions about capacity (section 2(3)).

126) The question of whether a person lacks capacity within the meaning of the Act is to be decided on the balance of probabilities (section 2(4)). Accordingly, there must be evidence to support the fact that the person lacked mental capacity at the time the offence was committed. This may take the form of a report by a doctor or another expert.

127) If the defence challenge such evidence, prosecutors should have a conference with the expert and ensure that he/she has sight of all relevant material, including the defence's statements or reports. He/she should comment upon the defence contentions.

128) Prior to trial, the prosecution and defence expert should discuss the issues and agree common ground, which can then be presented to the court. It is also important that when the defence expert is giving evidence, the prosecution expert is in court thereby allowing him/her to provide information to the prosecutor on any contentious issues.

129) The offence is committed when a person ill-treats or wilfully neglects another who lacks, or whom he/she reasonably believes to lack, mental capacity and that person:

  • has the care of that other person; or
  • is the donee of a lasting power of attorney, or an enduring power of attorney (for definition, see Schedule 4 of the Act) created by the person who lacks capacity; or
  • is a deputy appointed by the court for the person who lacks capacity.

130) Even if the victim has capacity, it will still be an offence if the person who had the care of him/her reasonably believed he/she lacked capacity and ill-treated or neglected him/her. 'Reasonable belief' means that in all the circumstances, a reasonable person would believe that the victim lacked capacity.

131) The Act applies to everyone who looks after or cares for someone who lacks mental capacity. This includes both those who have the day to day care of that person as well as those who only have the very short term care, whether they are family carers, professional carers or other carers. Please refer to the introduction of the Code of Practice for the Mental Capacity Act (due to have completed its Parliamentary passage in April 2007) for further guidance.

132) The Act does not define 'ill-treatment' and 'wilful neglect', therefore these concepts should be given their ordinary meaning.

133) For assistance on what constitutes 'wilful neglect', reference should be made to Archbold 17-47 to 17-48, 19-300 - 19-303 which deals with the offence of 'wilful neglect' and 'ill treatment' of children. On what constitutes 'ill-treatment', reference should be made to Archbold 19-278, which deals with 'ill-treatment' of persons of unsound mind.

134) Offences of ill-treatment and wilful neglect are continuing offences (R v Hayles [1969] 1 Q.B. 364, 53 Cr.App.R. 36, CA).

135) For the indictment, 'ill treatment' and 'wilful neglect' should feature in separate counts.

136) Code for Crown Prosecutors considerations for ill-treatment or neglect offences.

137) If the evidential test is met, then the public interest will nearly always demand that a prosecution occurs due to the position of trust that the suspect held in relation to the victim, as well as the extreme vulnerability of the victim.

138) Evidence of the victim's incapacity or the circumstances that would lead one to believe that the victim was incapacitated, must be obtained. Similarly, if applicable, evidence of the power of attorney or appointment as a deputy must be obtained.

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Witness care issues for ill-treatment or neglect offences

139) Prosecutors should carefully consider whether the offence can be proved without the victim having to give evidence. If the victim is able to give evidence, and it is necessary for him/her to give evidence, then special measures must be considered as the person is a 'vulnerable witness' for the purposes of the Youth Justice and Criminal Evidence Act 1999. Please refer to Special Measures elsewhere in the Legal Guidance.

140) For offences against "older people", please refer to Crimes against the Older Person - CPS Prosecution Policy elsewhere in the Legal Guidance

General Points

141) These offences contain a variety of alternative allegations. Check them carefully before making the appropriate selection.

142) The above offences except threats to kill, kidnapping and false imprisonment, all carry a maximum sentence of life imprisonment except section 23 (10 years) and section 24 (5 years). With section 24 the sentencing approach is to equate it with either a section 20 or a fairly serious section 47 as they all carry the same penalty.

143) Threats to kill is an either way offence which carries a maximum penalty on indictment of ten years imprisonment. Kidnapping and False Imprisonment are common law offences, punishable by fine or imprisonment, or both.

144) Where serious injury has resulted there is little to be gained from charging one of these more unusual offences instead of an offence contrary to section 18 provided the necessary intention to do grievous bodily harm can be proved. Do not charge just because a poison or corrosive fluid has been used to cause injury. They should be confined to situations where the evidence does not support the more usual charges of aggravated assault set out in the Guidance.

145) These offences are relevant in circumstances where the injury does not amount to grievous bodily harm or where the acts of the defendant are not sufficiently proximate to the indictable offences to allow a charge of attempting to commit that indictable offence.

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Acceptability of Pleas

146) All decisions concerning the acceptability of pleas should be made in accordance with the principles set out in the Code for Crown Prosecutors.

147) Where the aggravated offence has been charged, prosecutors should not accept a guilty plea to the basic offence alone unless there are sound reasons for doing so. An example would be that the evidence needed to prove the aggravated element of the offence was no longer available or the court refused to allow the evidence to be given.

Aggravated assaults

148) Section 29 Crime and Disorder Act 1998 provides a maximum penalty of seven years' imprisonment for a racially or religiously aggravated unlawful wounding, GBH or ABH (rather than five years for an offence that is not so aggravated) and a maximum penalty of two years imprisonment for a racially or religiously aggravated common assault (rather than six months). It also provides that racially or religiously aggravated common assault shall be triable either way, whereas common assault is a summary only offence.

149) Section 146 Criminal Justice Act 2003 provides that hostility based on race, religion, sexual orientation or disability is an aggravating factor in relation to all other criminal offences but does not provide for any increase to the maximum penalty for an offence aggravated in this way.

150) In such circumstances, a sentencer should firstly determine the appropriate sentence for the offence without taking account of the element of racial aggravation and then make an addition to the sentence.16 Where the offence does not attract a higher maximum penalty, the increase in sentence will, of course, be limited by the maximum penalty for the offence. refer to Racist and Religiously Aggravated Crime elsewhere in the Legal Guidance

151) The Sentencing Guidelines Council has issued definitive sentencing guidance on those offences of attempted murder that are due to be sentenced on or after 27 July 2009. See Attempted Murder: Definitive Guideline. Prosecutors should also refer to the Sentencing Manual for current sentencing practice in relation to attempted murder.

Transmission of HIV and sexually transmitted infections

152) There is a wide range of circumstances in which an offence involving the transmission of HIV and other sexually transmitted infections (generally charged as a section 18 or section 20 offence) can be proved, including where sexual activity was consensual. Such offences can be extremely serious and a significant custodial sentence is to be expected following conviction. For guidance as to the intentional or reckless sexual transmission of infection, refer to Intentional or Reckless Sexual Transmission of Infection, elsewhere in the Legal Guidance.

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Sentencing Issues

Use of weapons and assaults

153) Generally sentences in which firearms are used the aggravated feature should be marked by a consecutive sentence, subject to regard being had to the totality of the sentence then passed, R v McGrath (Sean David) (1986) 8 Cr. App. R. (S.) 372

154) However, where the use of a firearm led onto the primary offence, which could not be separated from the firearms offence (for instance where the weapon actually seriously harms or kills another person, then separate and consecutive sentences become artificial. R v Johnson [2005] EWCA Crim 2281

Dangerous Offenders

155) The Criminal Justice Act 2003 provides special sentences for public protection to be used where an offender is considered to raise a "significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".

156) These provisions apply to the offences in this guideline as follows:

Serious offences:

  • Attempted murder
  • GBH/Wounding with intent (section 18)

Specified offences:

  • Unlawful Wounding/GBH (section 20)
  • Racially/Religiously aggravated unlawful wounding/GBH
  • ABH
  • Racially/Religiously aggravated ABH
  • Assault with intent to resist arrest
  • Racially/Religiously aggravated common assault

Ancillary Orders

157) A number of ancillary orders are available in relation to offenders convicted of assault or another offence against the person and should be considered in appropriate cases. These include:

Compensation Orders

158) The court must consider making a compensation order, in accordance with the provisions of the Powers of Criminal Courts (Sentencing) Act 2000, in respect of any personal injury, loss or damage occasioned to a victim. Compensation should benefit, not inflict further harm on, the victim. Any financial recompense from the offender for an assault or other offence against the person may cause the victim distress. In cases of assault the police would always provide an MG19 request for compensation form unless it is inappropriate to do so.

Exclusion Orders

159) Following conviction an exclusion order is available where an offence involving the use or threat of violence is committed on licensed premises. An order prohibits the offender from entering specified licensed premises without the express consent of the licensee for a period between three months and two years.

Drinking banning orders

160) From 31 August 2009 the police and local authorities will be able to apply to the magistrates court for an order to be made against an offender who has committed an offence whilst under the influence of alcohol.  The order can prohibit the individual from doing things specified in the order to protect other persons from criminal or disorderly conduct. An order can have effect for a period of not less than two months and not more than two years. Those that breach the terms of the order can be prosecuted and will be liable to a fine not exceeding £2,500.  Refer also to Drinking Banning Orders (DBOs) elsewhere in the Legal Guidance.

Anti-Social behaviour orders

161) Can be made in respect of any person convicted of an offence where the offender acted in a manner likely to because harassment, alarm or distress. The court must consider that an order is required to protect against further anti-social acts by the offender and must have effect for at least two years. Refer also to Anti-Social Behaviour Guidance elsewhere in the Legal Guidance.

Football banning orders

162) An order must be made where an offender is convicted of a relevant offence and the court is satisfied that an order would help to prevent violence or disorder. The term of the order must be between six and ten years if imposed in addition to immediate imprisonment and between three and five years in other cases.

163) Prosecutors are reminded to refer to the Sentencing Manual for current sentencing practice in relation to assaults.

164) Prosecutors should also refer to the Sentencing Guideline's Council's publication Assaults and other Offences against the Person.

Restraining orders

165) An order can be made following conviction for any offence and restraining orders can also be issued following an acquittal for any offence if the court considers it necessary to protect a person from harassment by the defendant.  An order can be made prohibiting the defendant from doing anything as described in the order.  Refer also to Restraining Orders Section 12 Domestic Violence, Crime and Victims Act 2004  elsewhere in the Legal Guidance.

 

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