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Assaults on Emergency Workers (Offences) Act 2018

Updated 6th January 2020|Legal Guidance, Violent crime

Introduction

This guidance sets out considerations for Prosecutors and the Police following the coming into force of the Assaults on Emergency Workers (Offences) Act 2018 (“the 2018 Act”) on 13 November 2018. A Joint Agreement, effective from 6 January 2020, is also annexed. It provides for a broad framework to ensure the more effective investigation and prosecution of cases where emergency workers are the victim of a crime, and sets out the standards victims of these crimes can expect. It also makes reference to the Guidance on Management of Potential Exposure to blood-borne viruses in emergency workers.

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 where there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public
  • 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 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.

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 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 (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 (13 Criminal Justice and Public Order Act 1994).

Such assaults should now be prosecuted as offences contrary to section 1 of the 2018 Act and 39(2) Criminal Justice Act 1988.

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.

Employed or “engaged”

It is submitted that ‘engaged’ is not restricted to those ‘employed’ and can apply to those contracted to provide services, for example

  • Nurses not employed by, but under contractual arrangements with the NHS, who are engaged to attend police stations in order to attend to detained persons at the request of police officers or staff – s.3(1)(b) or s.3(1)(j) applies
  • Security staff engaged to provide (under contractual arrangements) services (e.g. protect NHS staff) in support of the provision of NHS health services (e.g. NHS care within a hospital). This would be where the role of the security officer involves general activities (engagement with the public to protect and safeguard NHS staff) and in doing so involves face-to-face interaction with individuals receiving the services or with other members of the public – s.3(1)(j) applies
  • Staff and volunteers who work for first aid organisations such as the St John Ambulance Service to provide a service under contract to the NHS are ‘engaged to provide NHS health services, or services in the support of the provision of NHS health services’ Where those general activities involve face to face interaction with individuals receiving the services or with other members of the public – s.3(1)(j) applies

On the facts of most cases, bar unusual circumstances, the fact that the worker has been assaulted by another person will tend to indicate that they have face to face interaction with the public OR those who receive services.

“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. The Act does not require the worker to have been acting in the circumstances of an emergency, it requires the worker to have been acting within the functions of the type of worker the victim was as provided for by section 3.

The following approach is proposed in relation to “acting in the exercise of functions”:

  • This is an element of the offence which the prosecution must prove to the criminal standard;
  • The drafting of “Acting in exercise of functions as an emergency worker” is different to that found in section 89 Police Act 1996. This implies a different, lower test;
  • In some cases it might not be possible to prove this element, either because the evidence does not coherently explain what the emergency worker was doing to act in the exercise of their functions, or because they have acted in a plainly unlawful manner;
  • In others, however, pending any authority on this point, where there is evidence of an emergency worker acting in the exercise of their functions, the case may be prosecuted under section 1, even if a case would not be made out when applying the law on section 89;

By way of example:

  • Where a person has been arrested whilst impeding the arrest of a third party, for the second arrest to be lawful, for the purposes of section 89, it must be shown that the first arrest was lawful: Riley v DPP 91 Cr. App. R. 14, DC. On the proposed reading of section 1, the second arrest would involve the officer acting in the exercise of their functions, and the first arrest would not vitiate this.
  • An officer who does not comply with the requirements to search a person, who is confronted and forms genuine concerns for their safety and considers that the suspect needs to be restrained to avoid use of a weapon, after which a violent struggle ensues, will not be within section 89. On this proposed reading they would be acting in the exercise of their functions (acting out of genuine concerns for safety notwithstanding that the incident began with a search which was not PACE compliant): Bonner v DPP [2004] EWHC 2415.

This approach may be combined with adding an alternative common assault or battery charge where “acting in the exercise of functions” is likely to be in issue. In an appropriate case, an appeal of a terminating ruling should be considered where the court will be able to rule on the interpretation of this element of the offence.

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 )
  • Section 28 OAPA 1861 (causing bodily injury by gunpowder )
  • 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.

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.

Common assault and battery as alternative 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.

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.

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.

Racially/Religiously aggravated Emergency Worker Assault

The Crime and Disorder Act 1998 provides that a specific aggravated offence is committed if it involves racial or religious hostility – see the Racist and Religious Hate Crime prosecution guidance. Section 1(2) Assaults on Emergency Workers (Offences) Act 2018 also creates a new discrete offence. It is not simply a sentence uplift provision for common assault. Section 2 of the 2018 Act provides for a statutory uplift for the sentencing of other offences committed against emergency workers.

Section 29(1)(c) of the Crime and Disorder Act 1998 carries a maximum penalty of 2 years imprisonment whereas Section 1(2) of the 2018 Act carries a maximum penalty of 12 months imprisonment.

Where an emergency worker is subject to a racially/religiously aggravated assault, section 29(1)(c) of the Crime and Disorder Act 1998 should be charged, as otherwise emergency workers would have less legal protection from racial/religious assaults than ordinary members of the public. A trial alternative under section 1(2) of the 2018 Act should be laid to allow the court to convict the defendant if they are not satisfied that the element of racial or religious aggravation is proved. Further, a sentence uplift should be sought under section 2(6) of the 2018 Act to reflect the statutory aggravating factor of the victim being an emergency worker.

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.

Allocation, Acceptance of Plea and Sentence

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 that may mean the case is not suitable for summary trial. Prosecutors should remind magistrates of their power to commit for sentence.

Paragraph 9.2 of the Code for Crown Prosecutors requires that:

“Prosecutors should only accept the defendant’s plea if:

  1. the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features;
  2. it enables the court to make a confiscation order in appropriate cases, where a defendant has benefitted from criminal conduct;
  3. it provides the court with adequate powers to impose other ancillary orders, bearing in mind that these can be made with some offences but not with others”

An assault on an emergency worker could, subject to the principles of totality and consecutive sentences, attract a consecutive sentence. Consecutive sentences will ordinarily be appropriate where offences arise out of unrelated facts or incidents.

  • In R v Kastercum (1972) 56 Cr. App. R. 298 the Court of Appeal held that when a defendant has been convicted both of a substantive offence and of an assault on a police officer, if the judge thinks that the assault on the police officer is part and parcel of the substantive offence and is to be treated as an aggravation of it, he can reflect that in his sentence for the substantive offence and it is logical and right that any separate sentence for the assault should be made concurrent. On the other hand, where an offender assaults the police in an effort to escape, the better course is that the sentence for the substantive offence should be fixed independently of the assault, and that the assault should be dealt with by a separate and consecutive sentence.
  • Any offence committed within the prison context - In v Haywood (Craig Callan) [2000] 2 Cr. App. R. (S.) 418 D was sentenced to 8 years for robbery. Two days later he attacked a prison officer and then pleaded to section 18 wounding. That carried automatic life. The Judge considered that 7 years was the notional determinate period and added that to the 8 years, making 15 years. This he halved to make the minimum period to be served. Held, the Judge took a logical and sensible step. Otherwise virtually nothing would have been added to the sentence D was already serving.
  • In v Hills (Christopher Carl) [2008] EWCA Crim 1871 a serving prisoner threw hot water in a prison officer’s face and hit him with an aluminium flask. Held that a term of imprisonment could be imposed consecutively to the minimum term of a subsisting indeterminate sentence.

Where a guilty plea is entered, prosecuting advocates should, where it is likely to assist the court in its determination of the seriousness of the offence prior to sentence, play any available body-worn video recording of the assault as part of the sentencing exercise as it is likely to assist the court in its determination of the seriousness of the offence prior to sentence.

In rare cases where guilty pleas are entered to even more serious offending behaviour (such as rape or aggravated burglary) with a not guilty plea to the section 1 offence, and the prosecution decides to proceed to sentence on that basis, an application should normally be made for the section 1 count to lie on the file or the charge withdrawn, rather than no evidence being offered.

The 2018 Act makes provision for increased sentencing powers for offences of common assault and battery committed against an emergency worker acting in the exercise of functions as such a worker. The parliamentary intention was recognised and endorsed by the court in McGarrick [2019] EWCA Crim 530. In passing sentence, the Judge observed that the officer had been in uniform and it was apparent that he was only doing what he was duty-bound to do. Police officers and other workers in uniform did not deserve to be treated in this way. In upholding a sentence of four months’ imprisonment the Appeal Court observed that the sentencing guideline for the offence of assaulting a police officer in the execution of his duty, contrary to s.89 of the Police Act 1996, does not apply to the s.1 offence. Parliament intended sentencing for the s.1 offence to be more severe. The clear legislative intent that assaults on public servants doing their work as part of the emergency services should be sentenced more severely than hitherto must be taken into account.

Public interest 

The following provisions of the Code for Crown Prosecutors merit emphasis:

  • It has never been the rule that a prosecution will automatically take place once the evidential stage is met.
  • A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.
  • In some exceptional cases the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal rather than bringing a prosecution.
  • This decision will be made taking into account all relevant factors identified in paragraph 4.14 of the Code for Crown Prosecutors.
  • This includes the provision that “a prosecution is more likely if the offence has been committed against a victim who was at the time a person serving the public”.

Joint Agreement on Offences against Emergency Workers

Click here to view agreement.

Further reading

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