Assaults on Emergency Workers (Offences) Act 2018

|Legal Guidance, Violent crime

Introduction

This guidance sets out considerations for Prosecutors and the Police. It is issued in anticipation of the coming into force of the Assaults on Emergency Workers (Offences) Act 2018 (“the 2018 Act”) on 13 November 2018. The Sentencing Council is in the process of revising its Assault Definitive Guideline. The CPS Offences against the Person Charging Standard legal guidance will be updated to incorporate a finalised version of this guidance in reflection of any revised Assault Definitive Guideline.

The Minister of State at the Ministry of Justice set out the underlying principles of the 2018 Act as follows: “An assault on any individual or citizen in our society is a terrible thing, but an assault on an emergency worker is an assault on us all. These people are our constituted representatives. They protect society and deliver services on our behalf. Therefore, an attack on them is an attack on us and on the state, and it should be punished more severely than an attack simply on an individual victim”.

Headlines

  • Police and prosecutors should cease charging the existing offences of common assault, battery, assaulting a police officer in the execution of their duty and other existing similar offences where the complainant is an emergency worker (in accordance with the definition in the Act).  Prosecutors should charge under the provisions of the 2018 Act as at the commencement of the legislation where there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public interest.
  • Police should charge the offence at section 1 of the 2018 Act (where a guilty plea is anticipated and the offence is suitable for sentence in a magistrates’ court) in preference to existing summary offences that apply to assaults against emergency workers.

Section 1(2) of the 2018 Act and Section 39(2) Criminal Justice Act 1988

Section 1(2) of the 2018 Act provides that the existing offences of common assault and battery are triable either way and carry a maximum sentence of 12 months’ imprisonment and/or an unlimited fine, where the provisions of section 1(1) are met. Section 1(1) is met where the common assault or battery is committed against an emergency worker acting in the exercise of functions of such a worker.

Definition of emergency worker

Emergency workers are defined at s.3(1) of the 2018 Act as a:

  • Constable;
  • Person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
  • National Crime Agency officer;
  • Prison officer;
  • Person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
  • Prisoner custody officer, so far as relating to the exercise of escort functions;
  • Custody officer, so far as relating to the exercise of escort functions;
  • Person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;
  • Person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
  • Person employed for the purposes of providing, or engaged to provide NHS health services, or services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.

It is immaterial for the purposes of subsection (1) whether the employment or engagement is paid or unpaid. 

“Acting in exercise of functions as an emergency worker”

The Act does not provide a definition for “acting in the exercise of functions as an emergency worker”. Prosecutors should identify and, if necessary, obtain evidence of what the emergency worker was doing at the material time to address this element of the 2018 Act provisions.

Statutory Aggravating Factor

Section 2 of the 2018 Act deals with other more serious offences that are not covered by the new aggravated version of battery and common assault provided for by section 1(2) of the 2018 Act.

The court must consider an offence committed against an emergency worker as an aggravating factor in sentencing those offences set out at s.2(3) of the 2018 Act, which are:

  • Section 16 Offences against the Person Act 1861 (OAPA 1861) (threats to kill)
  • Section 18 OAPA 1861 (wounding with intent to cause grievous bodily harm)
  • Section 20 OAPA 1861 (malicious wounding)
  • Section 23 OAPA 1861 (administering poison etc.)
  • Section 28 OAPA 1861 (causing bodily injury by gunpowder etc.)
  • Section 29 OAPA 1861 (using explosive substances etc. with intent to cause grievous bodily harm)
  • Section 47 OAPA 1861 (assault occasioning actual bodily harm)
  • Section 3 Sexual Offences Act 2003 (sexual assault)
  • Manslaughter
  • Kidnapping
  • An ancillary offence in relation to the preceding offences above.

A court can further treat an offence committed against an emergency worker acting in the exercise of functions as such a worker as an aggravating factor despite that offence not being set out at s.2(3) of the 2018 Act – see s.2(6).

The aggravating factor at s.2 of the 2018 Act requires the court to regard the offending as more serious, meriting an increased sentence within the maximum for the offence. The Act also requires the court to make a finding that the offence was aggravated and to state this in open court.

Prosecutors should draw the attention of the court to this aggravating factor when opening the case for sentence and/or trial.

Existing Summary Offences

In addition to common assault and battery where the complainant is an emergency worker, existing summary offences for prosecuting occupation specific assaults are superseded by s1 of the 2018 Act.  These include:

  • Assault of a police officer or prison officer (due to s.8 Prison Act 1952) in the execution of their duty (Section 89 Police Act 1996).
  • Private sector prison officers are covered by assault on a prisoner custody officer acting in pursuance of prisoner escort arrangements; performing custodial duties at a contracted out prison; or performing contracted out functions at a directly managed prison (s.90 Criminal Justice Act 1991).
  • Assault on a secure training centre custody officer acting in pursuance of escort arrangements; performing custodial duties at a contracted out secure training centre; or performing contracted out functions at a directly managed secure training centre (s.13 Criminal Justice and Public Order Act 1994).

Such assaults are now available for prosecution as an offence contrary to section 1 of the 2018 Act and 39(2) Criminal Justice Act 1988.

The Division of Charging Responsibility

Paragraph 15 of the Director’s Guidance on Charging provides for a division of charging responsibility between the CPS and the police. It provides that the police may charge any either way offence anticipated as a guilty plea and suitable for sentence in a magistrates’ court. Otherwise, either way offences fall to be charged by the Prosecutor.

Determining whether the offence at section 1 of the 2018 Act is suitable for sentence in the magistrates’ court requires an assessment of the seriousness of the offence. That is determined by considering the harm caused, the offender’s culpability and any aggravating features of the case.

Allocation

When determining representations on allocation, prosecutors should have regard to the Sentencing Council Allocation Guideline and relevant factors which are likely to be found in the Assault Definitive Guideline.  These cases are likely to be suitable for summary trial but prosecutors are reminded to consider factors indicating greater harm and higher culpability which may mean the case is not suitable for summary trial. Prosecutors should remind magistrates of their power to commit for sentence.

Factors indicating greater harm

  • Injury or fear of injury which is serious in the context of the offence (must normally be present)
  • Victim is particularly vulnerable because of personal circumstances
  • Sustained or repeated assault on the same victim

Factors indicating lesser harm

  • Injury which is less serious in the context of the offence

Factors indicating higher culpability

  • 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)
  • A significant degree of premeditation
  • Threatened or actual 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
  • Deliberate targeting of vulnerable victim
  • 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
  • A greater degree of provocation than normally expected
  • Lack of premeditation
  • Mental disorder or learning disability, where linked to commission of the offence
  • Excessive self defence

Factors increasing seriousness

  • 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
  • Location of the offence
  • Timing of the offence
  • Ongoing effect upon the victim
  • Presence of others including relatives, especially children or partner of 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
  • Abuse of power and/or position of trust
  • Established evidence of community impact
  • Any steps taken to prevent the victim reporting an incident, 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
  • Lapse of time since the offence where this is not the fault of the offender
  • Mental disorder or learning disability, where not linked to the commission of the offence
  • Sole or primary carer for dependent relatives

Although not a factor expressly referred to in the Assault Definitive Guideline, concerns about spitting at or towards public servants and the approach to take can be illustrated by R. v Misalati (Fadhil) [2017] EWCA Crim 2226. The defendant was charged with offences of racially aggravated harassment and racially aggravated common assault. The prosecution case was that by spitting towards the victim the appellant caused her to fear immediate use of force, that being immediate landing of spittle. The appeal court confirmed although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate use of force.

Existing Indictable Offences

Prosecutors must ensure that they continue to give consideration to the appropriateness of charging existing indictable offences where the complainant is an emergency worker, including Assault Occasioning Actual Bodily Harm and Grievous Bodily Harm.  Other offences that continue to co-exist include: 

Racially or religiously aggravated common assault

Racially or religiously aggravated is defined at section 28 Crime and Disorder Act 1998 (CDA 1988). Section 29(1)(c) CDA 1988 provides for the offence of racially or religiously aggravated common assault that carries a maximum penalty of two years. In applying section 6 of the Code, prosecutors should consider the evidence to determine whether section 29 CDA 1988 is preferable to the 2018 Act offence where the elements of the section 29 offence are made out. Regard must be given to the Racist and Religious Hate Crime - Prosecution Guidance

Assault with intent to resist arrest

Assault with intent to resist arrest -s.38 OAPA 1861 - carries a maximum of 2 years’ imprisonment. Prosecution of this offence requires evidence of the defendant’s intention to resist arrest when committing an assault. In applying section 6 of the Code, prosecutors should consider the evidence to determine whether section 38 OAPA 1861 is preferable to the 2018 Act offence where the elements of the section 38 offence are made out.

Common assault and battery as alternative offences

In a case where the prosecutor identifies that either element of the 2018 provisions, namely “emergency worker” and “acting in the exercise of functions as such a worker”, are likely to be in issue or are identified as being in issue, prosecutors should determine whether or not there is sufficient evidence for the 2018 offence. If they conclude that there is sufficient evidence but that the court, given the likely trial issues, should have before it an alternative charge, the alternative charges of common assault or battery should be considered.

In a summary trial, it is not open to the court to return such an alternative verdict and so the further charge may be added to permit the court to return this if satisfied that the assault is made out but not the elements “emergency worker” and/or “acting in the exercise of functions as such a worker”.

In a Crown Court trial, alternative charges of battery or common assault may appear on the indictment as an alternative, pursuant to section 40 Criminal Justice Act 1988, and therefore permit a jury to return this verdict if satisfied that the assault is made out but not the elements “emergency worker” and/or “acting in the exercise of functions as such a worker”.

A plea to these offences will not normally be acceptable, however if in the particular circumstances of the case prosecutors are considering accepting such a plea they must consult and take into account the views of the complainant in accordance with existing guidance on acceptance of pleas.

Offence Wording

ASSAULT ON EMERGENCY WORKER

On (Date), at (Township), D assaulted (Name of Complainant), a (Specify the type of emergency worker from the list at S.3(1)), an emergency worker acting in the exercise of functions as such a worker.

Contrary to section 1(2) Assaults on Emergency Workers (Offences) Act 2018 and 39(2) Criminal Justice Act 1988

 

Further reading