Assault with intent to resist arrest - (pre June 2011 edition)

Date produced: 29 June 2009
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
Sentencing range: Specified violent offence

 Relevant Sentencing Guidelines

The SGC definitive guideline 'Assault and Other Offences Against the Person' applies to offenders sentenced on or after 3 March 2008.

Seriousness, culpability and harm

The primary factor is the seriousness of the offence committed; that is determined by assessing the culpability of the offender and the harm caused, intended or reasonably foreseeable. Consider the SGC guideline 'Overarching Principles: Seriousness' for general factors when assessing seriousness, culpability and harm. The SGC Assaults guideline states (at para. 22) that use of a weapon or part of the body such as the head usually increases seriousness, and (at para.23) that relative seriousness is based on whether the assault was pre-meditated or spontaneous and on the degree of harm that resulted.

Aggravating and mitigating factors

The most common factors likely to aggravate assaults are:

• planning of an offence;
• offenders operating in groups or gangs;
• deliberate targeting of vulnerable victim(s);
• offence committed against those working in the public sector or providing a service to the public;
• use of a weapon to frighten or injure victim;
• a sustained assault or repeated assaults on the same victim;
• circumstances such as isolated location, taking advantage of poor lighting, vulnerability of victim

The most common mitigating factors are:

• provocation
• unintended injury

Additional aggravating and mitigating factors follow the guidelines on the next page.

SGC guidelines

The guidelines set out below apply to a first time adult offender who has been convicted after a trial, and on the basis that he/she has not been assessed as dangerous.

• Type/nature of activity: Persistent attempt to resist arrest OR Use of force or threats of force over and above that inherent in the offence  
  Starting point: 36 weeks custody 
  Sentencing range: 24 weeks - 18 months custody
• Type/nature of activity: Assault (defined as including spitting) resulting in minor, non-permanent injury  
  Starting point: Community Order (HIGH) 
  Sentencing range: Community Order (LOW) - 26 weeks custody
• Type/nature of activity: Assault where no injury caused  
  Starting point: Community Order (LOW) 
  Sentencing range: Fine to Community Order (HIGH)

Additional aggravating factors

• Escape
• Head butting, kicking or biting
• Picking up an item to use as a weapon, even if not used

Additional mitigating factor

• Genuine belief that the arrest was unlawful where this does not found a defence to the charge

Aggravation based on victim's race, religion, disability or sexual orientation

A court should firstly determine the appropriate sentence without taking account of the aggravated element and then make an addition to the sentence.

If proved, the following factors can be taken to indicate a high level of aggravation whether based on the victim's race, religion, disability or sexual orientation:

The offender's intention:

• the aggravated element was a planned part of the offence;
• the offence was part of a pattern of offending by the offender;
• the incident was deliberately set up to be offensive or humiliating to the victim or to the group of which the victim is a member.

The impact on the victim or others:

•  the nature, timing or location of the offence was calculated to maximise the harm or distress it caused;
•  the offence is shown to have caused fear and distress throughout a local community.

At the lower end of the scale, the aggravated element might be less serious if:

• it was limited in scope or duration;
• the motivation for the offence was not hostility based on the victim's race, religion, disability or sexual orientation, and the element of such hostility or abuse was minor or incidental.

Relevant Sentencing Case Law

Decisions reported in CSP at B2-6 for assaults on police officers. This section covers not only section 38 assault with intent to resist or prevent arrest but also offences such as section 18 wounding and assault occasioning actual bodily harm.

Ancillary Orders:

• Compensation
• Exclusion order
• Drinking banning order
• Anti-social behaviour order
• Football banning order
  

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