Offences against the Person, incorporating the Charging Standard

Updated: 12 November 2018|Legal Guidance, Violent crime

Contents

Introduction

The Charging Standard sets out how to approach charging decisions and prosecutions in cases involving various offences against the person. It is designed to assist prosecutors and police officers in selecting the most appropriate charge, in the light of the facts that can be proved, at the earliest possible opportunity. It should not be used when reaching any investigatory decision, such as the decision to arrest.

For offences which potentially overlap, the Charging Standard provides advice on how to decide which charge is most likely to be appropriate. It does not override:

  • the principles set out in the Code for Crown Prosecutors, and in particular paragraph 6.1, requiring prosecutors to select charges which reflect the seriousness and extent of the offending and provide the Court with adequate sentencing powers;
  • the need to consider, in every case, whether a prosecution is in the public interest;
  • the need for each case to be considered on its own facts and its own merits;
  • any guidance on the use of out of court disposals such as cautions or conditional cautions

Overarching Principles

  • This version of the Charging Standard, agreed by NPCC and the CPS, takes account of the Sentencing Council’s Definitive Guideline on Assault, which was issued on 16 March 2011 and the Sentencing Council's Allocation Guideline, effective from 1 March 2016.
  • To select charges in accordance with paragraph 6.1 of the Code, the assessment of seriousness should be based on:
    • the degree of harm or injury caused;
    • the culpability of the offender;
    • the wider context and circumstances of the offence;
    • the likely sentence that the Court will pass.
  • Charges should never be selected solely with the aim of keeping a case in the Magistrates’ Court (see below: Decision Making – Assault or ABH).
  • Venue decisions are to be made in accordance with the Allocation Guideline.
  • An offence committed against a person working in the public sector or providing a service to the public is an aggravating factor that should be highlighted in Court to assist in sentence.
  • The Assault Sentencing Guidelines can help prosecutors and police officers understand how the courts are likely to sentence in response to particular offending. In R v Thelwall [2016] EWCA Crim 1755, the Lord Chief Justice advised practitioners that our system now proceeds on the basis of guidelines, not case law. Citation of appeal court decisions in the application and interpretation of guidelines is generally of no assistance, except in exceptional cases where the guideline may be unclear.
  • Prosecutors should have regard to the Indictment Drafting guidance in cases of multiple offending.

Decision making – Common Assault or ABH

Key Points

Common assault should never be charged where the seriousness of the offence merits a charge of Assault Occasioning Actual Bodily Harm (ABH).

As detailed below, a charge of ABH may be appropriate on the basis of aggravating factors relating to seriousness, even where the injuries caused are towards the lower end of the scale.

Common assault should never be charged solely as a means of keeping the offence in the Magistrates’ Court.

Where a charge of ABH has been preferred, the acceptance of a guilty plea to common assault will not be justified, save for the absence of a significant change in circumstances that affects the seriousness of the offence and could not have been foreseen at the time of the charging decision.

This has been highlighted by the Court of Appeal in R v Moore [2015] EWCA Crim 1621. The appellant faced four counts of ABH against a single victim. However, the prosecution accepted pleas to common assault, as the victim did not wish to support the prosecution. The Court of Appeal expressed concern about this decision. They observed that “repeated bullying violence against a single victim exploiting a relationship is serious, even where no serious physical injury occurs.” The Court further stated that the Criminal Justice Act 2003 hearsay provisions were enacted in part to address difficulties where the victim withdraws support for the prosecution and provides a retraction statement. ABH should be tried summarily, unless:

  • any sentence would clearly exceed the Court’s powers for the offence(s) concerned, taking into account personal mitigation and any potential reduction for a guilty plea; or
  • where unusual legal, procedural or factual complexity exists.

Prosecutors should be mindful of the Allocation Guideline. Bearing in mind the Court’s power to commit for sentence after a trial, they may make representations that the Magistrates’ Court retains jurisdiction notwithstanding that the likely sentence might exceed its powers.

Where battery results in injury, a choice of charge is available. It is important that decisions are made on a consistent basis, particularly where injuries are at the lower end of the scale of seriousness.

In more serious cases where offences of inflicting GBH or wounding with intent or attempted murder are being considered, the level of intent will also be a key determining factor.

Assessment of Seriousness: Degree of harm and wider circumstances

The starting point in assessing the degree of harm caused is plainly the level of injuries that have resulted. Parliament has determined in simple terms that there should be separate offences reflecting three levels of harm and injury – Common Assault, ABH and GBH.

The degree of harm caused will in many cases be more than just the level of injuries sustained. There will be cases where, although the level of injury may be quite minor, the circumstances in which the assault took place e.g. repeated threats or assaults on the same complainant or significant violence (e.g. by strangulation), make a charge of ABH appropriate rather than one of Common Assault. There should be an assessment of the overall harm caused when deciding on charge and awareness that the level of injury is simply a part of the overall harm.

Features that provide a useful indication of when a charge of ABH may be appropriate are:

  • Use of a weapon of a kind likely to cause serious injury;
  • A weapon is used and serious injury is caused;
  • More than minor injury is caused by kicking or head-butting;
  • Serious violence is caused to those whose work has to be done in contact with the public or are likely to face violence in the course of their work;
  • Violence to vulnerable people, e.g. the elderly and infirm.

Assessment of Seriousness: Likely sentence

Common assault should not be charged where the seriousness of the offence requires a sentence in excess of the sentencing powers of the Magistrates’ Court.

In assessing the likely sentence that will be passed and the appropriate assault charge, the Definitive Sentencing Guideline on Assault provides valuable assistance to prosecutors and police officers. By assessing the culpability and harm of the offender with reference to the framework set out in the definitive guideline, prosecutors and police officers will be able to determine both the starting points and category ranges for sentence. Careful consideration of the definitive guideline can therefore be a vital part of the review and decision-making process in assault cases.

Self-defence, defence of property and the prevention of crime

Such potential defences need careful consideration. Full guidance is set out in the separate legal guidance Self-defence and Prevention of Crime.

Domestic Abuse cases

The degree of harm, particularly in domestic abuse cases, will in many cases be more than just the level of injuries sustained. Prosecutors must prefer charges that reflect the offending behaviour and allows the court adequate powers of sentence – see R v Moore [2015] EWCA Crim 1621 above.

Guidance on how to approach difficulties where the victim withdraws support for the prosecution and provides a retraction statement is set out in the Hearsay guidance and in Domestic Abuse Guidelines for Prosecutors, particularly within the section “Possibility of proceeding with a prosecution without the complainant’s live evidence”. Prosecutors should carefully reflect on the domestic abuse guidelines when reviewing a case with difficulties such as that in R v Moore and provide detailed reasons to clarify the outcome of that review.

Prosecutors/Police are also reminded to consider measures to support witnesses at trial and to ensure victim impact statements are available.

Controlling or coercive behaviour

Section 76 of the Serious Crime Act 2015 created an offence of controlling or coercive behaviour in an intimate or family relationship. This is an either way offence with a maximum sentence of five years on indictment. Appropriate ancillary orders can be applied for upon sentence or acquittal e.g. restraining orders. Prosecutors should liaise with the police to seek the views of the victim before an application is made.

Prosecutors should charge identified incidents of assault as appropriate. However an additional charge of controlling or coercive behaviour can be charged where the elements of that offence are made out. The offence highlights the importance of recognising the harm caused by coercion or control, the cumulative impact on the victim and that a repeated pattern of abuse can be more injurious and harmful than a single incident of violence.

Prosecutors should refer to the Domestic Abuse Guidelines for Prosecutors in all relevant cases and to the Controlling or Coercive Behaviour in an Intimate or Family Relationship guidance in prosecutions for this offence.

The Main Offences

Common Assault – s39 Criminal Justice Act 1988

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. A battery is committed when a person intentionally or recklessly applies unlawful force to another. Where there is a battery, the defendant should be charged with ‘assault by beating’. (DPP v Little (1992) 1 All ER 299).

Common assault is a summary offence, which carries a maximum penalty of six months’ imprisonment and/or a fine. However, if the requirements of s40 of the Criminal Justice Act 1988 are met it can be included as a count on an indictment. Refer to Summary offences and the Crown Court (Criminal Justice Act 1988 s40; Crime and Disorder Act 1998 s51 and Sch.3 para.6, elsewhere in CPS guidance).

Common Assault is capable of being racially/religiously aggravated under the Crime and Disorder Act 1998. The racially/religiously aggravated version of s39 is an either way offence. Refer to Racist and Religious Hate Crime - Prosecution Guidance, elsewhere in CPS guidance.

See the Assault Definitive guideline for sentencing guidelines for this offence.

Assault occasioning Actual Bodily Harm (ABH) – s47 OAPA 1861

The offence is committed when a person intentionally or recklessly assaults another, thereby causing Actual Bodily Harm (ABH). 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). It is an either way offence, which carries a maximum penalty on indictment of five years’ imprisonment and/or a fine.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH. In any case where psychiatric injury is relied upon as the basis for an allegation of ABH, and the matter is not admitted by the defence, expert evidence must be called by the prosecution (R v Chan-Fook  99 Cr.  App.  R. 147, CA).

Features that provide a useful indication of when a charge of ABH may be appropriate are set out above.

This offence is capable of being racially aggravated under the Crime and Disorder Act 1998. Refer to Racist and Religious Hate Crime - Prosecuting Guidance, elsewhere in CPS guidance.

See the Assault Definitive guideline for sentencing guidelines for this offence.

Consent

An element of the offence of common assault is lack of consent so that the prosecution has to establish that the offence was committed without consent. However, a lack of consent can be inferred from evidence other than the direct evidence of the victim - CPS v Shabbir [2009] EWHC 2754 (Admin).

The House of Lords held in R v Brown (Anthony Joseph) [1994] 1 A.C. 212 that in the absence of a good reason, the victim's consent is no defence to a charge under the Offences Against the Person Act 1861, ss20 or 47 ; the satisfying of sado- masochistic desires does not constitute such a good reason.

Unlawful wounding/inflicting grievous bodily harm (GBH) – s20 OAPA 1861

This offence is committed when a person unlawfully and maliciously either wounds another person or inflicts GBH upon another person. It is an either way offence, which carries a maximum penalty on indictment of five years’ imprisonment and/or a fine.

The words "grievous bodily harm" bear their ordinary meaning of "really serious" harm - DPP v Smith [1960] 3 W.L.R. 546. Ultimately, the assessment of harm done is a matter for the jury, applying contemporary social standards – R v Golding [2014] EWCA Crim 889.

There is no necessity for an assault to have been committed before there could be an infliction of GBH - R v Golding [2014] EWCA Crim 889; R v Konzani [2005] EWCA Crim 706. However psychological injury not amounting to recognizable psychiatric illness does not fall within the ambit of bodily harm for the purposes of the 1861 Act - R v D [2006] EWCA Crim 1139.

Wounding

A "wound" means a break in the continuity of the whole skin - JJC (A Minor) v Eisenhower [1983] 3 W.L.R. 537. The definition of wounding may encompass injuries that are relatively minor in nature, for example a small cut or laceration.

The “wounding” form of the s20 offence should be reserved for those wounds considered to be really serious.

A really serious injury other than a wound should be charged as the GBH form of the section 20 offence in accordance with the recommendation in R v McCready (1978) 1WLR 1376. Where both a wound and GBH have been inflicted, discretion should be used in choosing which part of s20 more appropriately reflects the true nature of the offence.

When a defendant is charged with inflicting GBH under s20 OAPA 1861, or the Theft Act 1968 s9(1)(b), it is open to the jury to find him guilty of ABH contrary to s47 of the 1861 Act. Both charges impliedly include allegations of ABH which constitutes another offence within the Criminal Law Act 1967 s6(3) - R v Wilson (Clarence George) [1983] 3 W.L.R. 686.

The prosecution must prove under s20 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 s20. 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).

This offence is capable of being racially/religiously aggravated under the Crime and Disorder Act 1998. (Refer to Racist and Religious Hate Crime - Prosecuting Guidance, elsewhere in CPS guidance).

Cases involving the reckless transmission of sexual infection will usually be charged under s20 of the OAPA. These are particularly complex cases, and careful regard must be had to the separate legal guidance on Intentional or Reckless Sexual Transmission of Infection.

See the Assault Definitive guideline for sentencing guidelines for this offence.

Attempted Wounding and Attempted Grievous Bodily Harm

It is not possible to attempt to commit a s20 GBH offence. An attempt to cause GBH should be charged as an attempted s18 because, as a matter of law, if a suspect attempts to cause really serious harm he must necessarily intend to do so. Similarly, if a suspect attempts to cause a serious wound of a kind that would clearly amount to GBH the offence would be attempted s18.

Where the evidence demonstrates that the suspect intended to cause an injury that is substantially more serious than that (if any) which was in fact caused, Prosecutors should consider the circumstances of the case as a whole as well as the relevant sentencing guideline to determine the appropriate charge.

Because of the distinction between the definition of a wound and that of GBH there is an argument for saying that it is possible to attempt a s20 wounding - for example where an offender intends to cause an injury that would break the continuity of the whole of the outer skin but would not cause really serious bodily harm. It is unnecessary to consider this possibility in any further detail because in such circumstances it is likely that either an attempted s47 or an offence of common assault would be the appropriate charge in accordance with this Charging Standard.

See the Assault Definitive guideline for sentencing guidelines for this offence.

Wounding/causing grievous bodily harm (GBH) with intent – s18 OAPA 1861

This offence is committed when a person unlawfully and maliciously, with intent to do some GBH, or with intent to resist or prevent the lawful apprehension or detainer of any other person, either wounds another person or causes GBH to another person. It is an indictable only offence, which carries a maximum penalty of imprisonment for life.

The distinction between charges under s18 and s20 is one of intent. The gravity of the injury resulting is not the determining factor, although it may provide some evidence of intent.

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 or using an offensive weapon against, or kicking the victim’s head.

The evidence of intent required is different if the offence alleged is a wounding or the causing of GBH with intent to resist or prevent the lawful apprehension or detainer of any person. This part of s18 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 intent to cause GBH is in doubt.

It is not bad for duplicity to indict for wounding with intent to cause GBH 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.

Sentencing s18 offences

See the Assault Definitive guideline for sentencing guidelines for this offence.

The starting point for an offence that falls within category 1 is 12 years imprisonment and that for category 2 offences is 6 years. A factor indicating greater harm is injury (which includes disease transmission and/or psychological harm) which is serious in the context of the offence. In R v Smith [2016] 1 Cr. App. R. (S.) 8, the appeal court held that the purpose behind the words ‘whether the injury is serious in the context of the offence’ is to distinguish between the level of violence inherent in a standard offence under s18, and that which goes beyond what can be viewed as standard.

Given the marked disparity in the starting points, the sort of harm and violence which would justify placing a case within Category 1 has to be significantly above the level of harm which is normal for the purpose of s18.

Difficulty in determining the appropriate category also resulted in a reduction in sentence in R v Beaumont (Tony) [2016] 1 Cr. App. R. (S.) 58.

Throwing corrosive fluid on a person – s29 - and the prevalence of acid attacks

Section 29 of the OAPA 1861: "Whosoever shall unlawfully and maliciously ... cast or throw ... or otherwise apply any corrosive fluid ... with intent ... to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to any person, shall, whether any bodily injury be effected or not, be guilty of [an offence] ..."

The section 29 offence requires proof that the conduct was done "maliciously" and in addition, there must be proof of an intent to burn, maim, disfigure, or disable any person or to do some grievous bodily harm. However where that is proven the offence is committed whether the intended injury to the victim occurs or not. A charge can therefore be preferred whether or not injury is caused. If injury is caused, and acid attacks tend to result in really serious injury, a choice of charge therefore exists between section 29 and section 18 of causing grievous bodily harm with intent to do grievous bodily harm.

Where acid or a corrosive substance is thrown with intent to cause serious injury, then an offence under s29 Offences against the Person Act 1861 may be appropriate, even if no such injury is caused. Where serious injury is caused, s18 GBH should be considered.

Section 29 can be useful where the injuries caused did not result in long term damage (really serious injury) but where the required intent can be proved. In R v Adrian Kuti (1994) 15 Cr. App. R. (S.) 260 the appellant had been convicted of throwing a corrosive fluid with intent to do grievous bodily harm where he squirted a solution of 19 per cent ammonia in the face of the victim due to a driving dispute. The victim was taken to hospital but there was no long term damage. The jury found that the appellant had an intention to cause really serious harm and an alternative count of ABH was left to lie on the file. The court said "The carrying of ammonia is something which cannot possibly be justified. The placing of it in a container from which it can be squirted is a dangerous pursuit, and squirting it into the eyes has immense potentiality for harm."

The maximum sentence for sections 18 and 29 is life imprisonment. They are "specified violent offences" for the purposes of the dangerous offender provisions under the Criminal Justice Act 2003 Pt 12 Ch 5 (ss 224–236). In the domestic violence case of R v Riley and others (Ipswich Crown Court, 16 October 2015), sulphuric acid was thrown in the victim's face causing serious chemical burns to the right side of her face and body so that she required skin grafts and psychotherapy. She lost her right ear, needed reconstructive surgery, and was permanently scarred on the outside of the face and on the upper chest. Life imprisonment was imposed with a minimum term of 13 years.

In R v Midmore [2017] EWCA Crim 533 the defendant was convicted of causing GBH with intent. He threw sulphuric acid into the victim's face. She was left blind in one eye and partially sighted in the other. She required several skin grafts and was left with scarring to her face, damage to her neck and arms and damage to her eyelids which would not close properly and would probably cause repeated infection. An extended sentence of 20 years comprising a custodial term of 15 years imprisonment and an extension period of 5 years' was imposed.

There are no sentencing guidelines for the offence of applying a corrosive liquid with intent but the guidelines for section 18 of the OAPA 1861 are applicable - R v Riley [2017] EWCA Crim 243. Generally acid attacks will fall within category 1 with a starting point of 12 years' custody within a range of 9 to 16 years. The on-going effect on the victim is an aggravating factor that must be addressed in preparing such cases for prosecution and prosecutors must ensure that a victim personal statement is sought in all such cases together with relevant medical reports.

The defendants in R v Isaac [2016] EWCA Crim 1907 were charged with applying a corrosive fluid with intent to burn, maim, disfigure or disable, or to do some GBH. They were sent for trial at the Crown Court. One of the defendants shook the contents from a sports drinking bottle towards the right side of the victim's face in a case of mistaken identity causing burns to his feet, hands, arms and upper torso which required skin grafts. The 19 year old was sentenced to 10 years detention in a young offender institution and the youth received six years' detention.

As both s29 and s18 OAPA 1861 are punishable with life imprisonment, offences that are committed by youths will fall to be considered as "grave crimes".

The carrying of acid or other corrosive substance is likely to fall into the third category of offensive weapon described in Williamson [1978] 67 Cr. App. R. 35 – “… is intended by the person having it with him for the purpose of causing personal injury to someone”. See the Offensive Weapons, Knives, Bladed and Pointed Articles legal guidance.

Attempted murder, contrary to s1(1) Criminal Attempts Act 1981

Where the substantive criminal offence specifically requires the consequence of an act, an attempt to commit that offence ordinarily requires proof of intent as to that consequence. The required intent for murder is either intent to kill or intent to cause really serious injury. The required consequence of the act is death. Accordingly, for a charge of attempted murder to be made out the intent which must be proved is intent to kill: see R v Whybrow (1951) 35 CAR 141.

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

Unlike murder, which requires an intention to kill or cause GBH, 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 one under s18 OAPA 1861. Another possible charge may be Making Threats to Kill. 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.

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) of the 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 GBH with intent, because a defendant could not intend to kill without also intending to cause GBH. 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.

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.

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

  • calculated planning;
  • selection and use of a deadly weapon;
  • threats;
  • severity or duration of attack;
  • relevant admissions in interview.

Assaults on Emergency Workers and Public Servants

Note paragraph 4.14c of the Code- a prosecution is more likely if the offence has been committed against a victim who was at the time a person serving the public. Accordingly, there is a strong public interest in prosecuting such cases if the evidential stage of the Full Code Test is met. This is reflected in the Sentencing Council’s Definitive Guideline on Assault, in which the fact that an offence was committed against a person working in the public sector or providing a service to the public is identified as an aggravating factor. Sentencing practice indicates that custody is the appropriate starting point for a person who assaults a public servant.

There are offences of obstructing or hindering emergency workers under the Emergency Workers (Obstruction) Act 2006 that prosecutors should consider for charge where appropriate. Prosecutors should have regard to the Assaults on Emergency Workers Guidance particularly where a complainant falls within the list of emergency workers at s.3(1) of the Assaults on Emergency Workers (Offences) Act 2018 (“the 2018 Act”) that applies to offences committed on or after 13 November 2018.

Where the seriousness of the offence is such that a charge of ABH is merited, a case will not be suitable for summary trial where serious violence is caused to those whose work has to be done in contact with the public or are likely to face violence in the course of their work.

Sentencing assaults on emergency workers

Prosecutors should consult the appropriate guideline within the Assault Definitive Guideline.

Assaults on medical staff and ambulance personnel would frequently merit a custodial term - R v McDermott (Victor) [2006] EWCA Crim 1899. In 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. In 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.

In R v Colin Dickson [2005] EWCA Crim 1826 - having regard to the case of McNally and the judgement of Rose LJ on aggravating and mitigating factors for length of sentence, the Court of Appeal considered that the same factors will come into play when determining the appropriate sentence for assaults on police officers. Such attacks are particularly grave and any attack on a police officer who is carrying out his duty has to be treated very seriously.

Assault on a Constable in the execution of his/her duty – s89 (1) Police Act 1996

This 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. It is a summary only offence, which carries a maximum penalty of six months’ imprisonment and/or a fine.

A prosecution under s89(1) Police Act 1996 will be appropriate where an assault on a constable would otherwise fall to be charged as common assault, provided that the officer is acting in the execution of his or her duty. Where evidence that the officer was acting in the execution of his or her duty is insufficient, but proceedings for an assault are nevertheless warranted, the appropriate charge will be under s39. In such circumstances, the evidence will need to be carefully assessed so as to ensure that it can clearly be established that the suspect was not acting in self-defence. The fact that the victim is a police officer is not, in itself, a reason for charging ABH.

See the Assault Definitive guideline for sentencing guidelines for this offence.

Assault on a Prison Officer

Prison officers, while acting as such, have all the powers, authority, protection and privileges of a constable by virtue of s8 of the Prison Act 1952.

The Code makes it clear that police officers and prosecutors must select charges which reflect the seriousness and extent of the offending. Where the available evidence affords the police officer or prosecutor a choice between Common Assault and a charge under s89 of the Police Act 1996, the latter will normally be the more appropriate charge. As well as being the charge that Parliament intended should be brought, the bringing of such a charge will ensure that, if convicted, the offender’s record of antecedents properly reflects the nature of their conduct.

A joint national protocol has been issued between the CPS, Police and National Offenders Management Service (NOMS) on the appropriate handling of crimes in prison. The protocol applies to all offences but particularly focuses on assaults on prison staff.

Further guidance on prosecuting offences in prison is available in the Prison-Related Offences legal guidance.

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 police officers and prosecutors should consider the Guidance on Prosecuting Cases of Racist and Religious Hate Crime - Prosecuting Guidance.

Sentencing guidelines for assault on a police constable in the execution of his duty apply to this offence.

Assault on an Immigration Officer

Section 22 of the UK Borders Act 2007 makes it an offence to assault an immigration officer. An immigration officer is defined within s1 of the Act as someone “designated” by the Secretary of State. The offence is summary only and carries a maximum of 6 months’ imprisonment.

Police officers and Prosecutors should apply the same principles to offences under s22 as they would apply to offences of assaulting a police officer. However, it should be noted that s22 does not require the immigration officer to be assaulted “in the execution of his duty” as with the corresponding police officer offence.

Sentencing guidelines for assault on a police constable in the execution of his duty apply to this offence.

Assault with intent to resist arrest, contrary to s38 OAPA 1861

The offence is committed when a person assaults another person with intent to resist arrest or prevent the lawful apprehension/detention of himself / herself or another for any offence. It is an either way offence, which carries a maximum penalty on indictment of two years’ imprisonment and/or a fine.

A charge contrary to s38 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. When a police officer is assaulted, a charge under s89(1) of the Police Act 1996 will usually be more appropriate unless there is clear evidence of intent to resist apprehension or prevent detention and the sentencing powers available under s89(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.

It is not bad for duplicity to charge, “Resist or prevent the lawful apprehension or detainer” etc. in a count: Rule 7 of the Indictments Rules 1971.

See the Assault Definitive guideline for sentencing guidelines for this offence.

Other Relevant Offences

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:

  • Attempting to choke, suffocate or strangle with intent to enable the commission of an indictable offence, contrary to s21 OAPA 1861
  • Causing to be taken or administering a drug with intent to enable the commission of an indictable offence, contrary to s22 OAPA 1861
  • Administering poison or noxious thing thereby endangering life or inflicting GBH, contrary to s23 OAPA 1861
  • Administering poison or noxious thing with intent to injure, aggrieve or annoy, contrary to s24 OAPA 1861
  • Causing bodily injury by explosives, contrary to s28 OAPA 1861

Unlike offences under the Explosive Substances Act 1883, causing bodily injury contrary to s28 OAPA 1861 does not require the consent of the Attorney General. However, Prosecutors should not charge the s28 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.

Threats to kill, contrary to s16 OAPA 1861

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. This can be a difficult offence to prove, and it should be reserved for the more serious cases. Where it is doubtful whether the threat carried the necessary intent a charge under s4 Public Order Act 1986 may be appropriate. Refer also to Public Order Offences incorporating the Charging Standard, elsewhere in the Legal Guidance.

If the threat accompanies an assault, adding a charge of Threats to Kill will normally be unnecessary. There may be exceptional cases 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.

False imprisonment

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.

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 s44 of the Mental Capacity Act 2005 (MCA)

It is an offence for a person to ill-treat or neglect 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.

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 (s2(1)MCA).

It is immaterial if the impairment or disturbance is permanent or temporary (s2(2) MCA).

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 (s2(3) MCA).

The question of whether a person lacks capacity within the meaning of the Act is to be decided on the balance of probabilities (s2(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.

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.

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.

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.

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.

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.

The Act does not define ‘ill-treatment’ and ‘wilful neglect’, therefore these concepts should be given their ordinary meaning. Offences of ill-treatment and wilful neglect are continuing offences (R v Hayles [1969] 1 Q.B. 364, 53 Cr. App. R. 36, CA).

For the indictment, ‘ill treatment’ and ‘wilful neglect’ should feature in separate counts. Also see the Ill-treatment or Wilful Neglect Offences- Sections 20 to 25 of the Criminal Justice and Courts Act 2015 legal guidance.

For offences against “older people”, please refer to CPS guidance for Older People: Prosecuting crimes against elsewhere in the Legal Guidance.

Reasonable punishment of a child

Section 58 of the Children Act 2004 has removed the availability of the reasonable punishment defence for parents or adults acting in loco parentis where the accused is charged with wounding, causing GBH, ABH or cruelty to persons less than 16 years of age. However the reasonable punishment defence remains available for parents or adults acting in loco parentis against charges of common assault.

Selection of the charge where “reasonable punishment” may be a defence

In selecting the most appropriate charge, where the likely defence is one of “reasonable punishment (s58 Children Act 2004), regard must be given to the case of A v UK (1999) 27 EHRR 611. Unless the injury is transient and trifling and amounted to no more than temporary reddening of the skin, a charge of ABH, for which the defence does not apply, should be preferred.

Reasonableness of the punishment

The Court of Appeal in the case of R v H, The Times 17 May 2001 adopted the guidance set out in the case of A v UK and considered the factors to be taken into account where a defence of reasonable punishment is raised. Therefore, in such a case, limited to common assault by s58, the following factors will assist in determining whether the punishment in question was reasonable and moderate:

  • the nature and context of the defendant’s behaviour;
  • the duration of that behaviour;
  • the physical and mental consequences in respect of the child;
  • the age and personal characteristics of the child;
  • the reasons given by the defendant for administering the punishment.

Further reading