Assault with intent to resist arrest
Date Produced: 10 June 2011
Title: Offences against the Person
Offence: Assault with intent to resist arrest
Legislation: Offences Against the Person Act 1861 section 38
Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty: 2 years imprisonment
Relevant Sentencing Guidelines
The Sentencing Council's 'Assault Definitive Guideline' applies to all offenders aged 18 and over sentenced on or after 13 June 2011, regardless of date of offence. Section 38 offences are covered at pages 16 - 18 therein.
STEP 1 - Determine the offence category
- Category 1: Greater harm and higher culpability
- Category 2: Greater harm and lower culpability; or lesser harm and higher culpability
- Category 3: Lesser harm and lower culpability
The court should determine culpability and harm caused, or intended, by reference only to the factors listed in full below at STEP 1 HARM AND CULPABILITY FACTORS (as demonstrated by the presence of one or more). These factors comprise the principal factual elements of the offence and should determine the category.
STEP 2 - Use starting point to reach a sentence within the category range. It applies irrespective of plea or previous convictions. A case of particular gravity could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, listed in full below at STEP 2 SERIOUSNESS FACTORS.
Category 1
Starting Point (Applicable to all offenders): 26 weeks' custody
Category Range (Applicable to all offenders): 12 weeks' - 51 weeks' custody
Category 2
Starting Point (Applicable to all offenders): Medium level community order
Category Range (Applicable to all offenders): Low level community order - High level community order
Category 3
Starting Point (Applicable to all offenders): Band B fine
Category Range (Applicable to all offenders): Band A fine - Band C fine
STEP 3 - Any other factors which indicate a reduction, such as assistance to the prosecution
STEP 4 - Reduction for guilty pleas
STEP 5 - Dangerousness - specified violent offence
STEP 5 - Totality principle
STEP 7 - Compensation and ancillary orders
STEP 8 - Reasons
STEP 9 - Consider remand time
Relevant Sentencing Case Law
Decisions reported in CSP at B2-6 for assaults on police officers.
STEP 1 HARM AND CULPABILITY FACTORS
HARM
Factors indicating greater harm
- Sustained or repeated assault on the same victim
Factors indicating lesser harm
- Injury which is less serious in the context of the offence
CULPABILITY
Factors indicating higher culpability
Statutory aggravating factors:
- Offence racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
- Offence motivated by, or demonstrating, hostility to the victim based on the victim's disability (or presumed disability)
Other aggravating factors:
- A significant degree of premeditation
- Use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal)
- Intention to commit more serious harm than actually resulted from the offence
- Deliberately causes more harm than is necessary for commission of offence
- Leading role in group or gang
- Offence motivated by, or demonstrating, hostility based on the victim's age, sex, gender identity (or presumed gender identity)
Factors indicating lower culpability
- Subordinate role in group or gang
- Lack of premeditation
- Mental disorder or learning disability, where linked to commission of the offence
STEP 2 SERIOUSNESS FACTORS
The following lists are non-exhaustive
Factors increasing seriousness
Statutory aggravating factors:
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
- Offence committed whilst on bail
Other aggravating factors include:
- Location of the offence
- Timing of the offence
- Ongoing effect upon the victim
- Gratuitous degradation of victim
- Failure to comply with current court orders
- Offence committed whilst on licence
- An attempt to conceal or dispose of evidence
- Failure to respond to warnings or concerns expressed by others about the offender's behaviour
- Commission of offence whilst under the influence of alcohol or drugs
- Established evidence of community impact
- Any steps taken to prevent the victim reporting an incident, or obtaining assistance and/or from assisting or supporting the prosecution
- Offences taken into consideration (TICs)
Factors reducing seriousness or reflecting personal mitigation
- No previous convictions or no relevant/recent convictions
- Single blow
- Remorse
- Good character and/or exemplary conduct
- Determination, and/or demonstration of steps taken to address addiction or offending behaviour
- Serious medical conditions requiring urgent, intensive or long-term treatment
- Isolated incident
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability, where not linked to the commission of the offence
- Sole or primary carer for dependent relatives
