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Offences against the Person, incorporating the Charging Standard

Updated: 06 January 2020|Legal Guidance, Violent crime

Introduction

This Charging Standard is designed to assist prosecutors and investigators in selecting the most appropriate charge, in the light of the facts that can be proved, at the earliest possible opportunity where offences against the person are concerned.

The Charging Standard is subject to:

  • the principles set out in the Code for Crown Prosecutors (“the Code”): in particular the two-stage Full Code Test, and section 6, which provides guidance on the selection of charges;
  • the need for each case to be considered on its facts and merits;
  • any guidance on the use of out of court disposals such as cautions or conditional cautions.

Overarching Principles

  • Paragraph 6.1 of the Code requires prosecutors to select charges which:
    • reflect the seriousness and extent of the offending;
    • give the court adequate powers to sentence and impose appropriate post-conviction orders;
    • allow a confiscation order to be made in appropriate cases, where a defendant has benefitted from criminal conduct; and
    • enable the case to be presented in a clear and simple way.
  • In order to do this, prosecutors should apply the Sentencing Council’s Allocation Guideline and the relevant assault guideline. 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. Further, paragraph 6.4 of the Code requires prosecutors not to change the charge simply because of the decision made by the court or the defendant about where the case will be heard.
  • Prosecutors should have regard to the Assaults on Emergency Workers (Offences) Act 2018 and the Assaults on Emergency Workers Guidance that applies to offences committed on or after 13 November 2018. This annexes a Joint Agreement on offences against emergency workers that 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.
  • An offence committed against a person working in a public-facing role is an aggravating factor that should be highlighted in Court to assist at sentence, whether
    • by the selection of a charge pursuant to section 1 of the Assaults on Emergency Workers (Offences) Act 2018 (“the 2018 Act”),
    • drawing the court’s attention to section 2 of the 2018 Act (statutory aggravating factor for specific offences), or
    • in general, as reflected in the Sentencing Council guidelines. 
  • There exists an overlap in the main offences: care must be taken in selecting a charge that reflects the seriousness of the offending and when deciding whether to accept a plea to a lesser offence. This is likely only to be appropriate if the original charge was clearly wrong or there has been a change in circumstances.
  • The 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 sentencing 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.

Charging Offences involving Domestic Abuse

  • Schedule 1 paragraph 12(9) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was inserted in April 2013 to provide a definition of ‘domestic violence’ as “Any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.”
  • Section 62 Family Law Act 1996 provides a meaning of the phrase ‘associated with each other’ by clarifying who are associated persons. It further provides meanings for ‘cohabitants’ and ‘relevant child’.
  • The Director’s Guidance on Charging sets out a division of charging responsibility. It requires all offences classified as domestic violence under CPS policies to be referred to the CPS for a charging decision.
  • The CPS Domestic Abuse Guidelines for Prosecutors states that “This definition of domestic abuse is also used by the police to identify cases referred to the CPS under the Director's Guidance on Charging. This definition is also used by other Government Departments to inform their own policies. The safety of complainants and children in addition to the defendant's accountability are important to the CPS when prosecuting cases of domestic abuse. Prosecutors should apply this policy to all cases of current or former partner or family abuse irrespective of the age of the offender or the complainant”
  • Common assaults on children by parents need to be referred for a CPS charging decision - see further within the 'Reasonable Punishment of a Child' section below

In assessing seriousness, the Sentencing Council’s Domestic Abuse guideline provides that:

“The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim’s safety, and in the worst cases a threat to their life or the lives of others around them.

Domestic abuse offences are regarded as particularly serious within the criminal justice system. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues, and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them.

Cases in which the victim has withdrawn from the prosecution do not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case.”

Prosecutors should have regard to the overall degree of harm, particularly in domestic abuse cases, beyond the level of injuries sustained, when selecting charges that reflect the offending behaviour and allow the court adequate powers of sentence.

A pattern of similar behaviour indicating greater harm may be evident from the number of offences being considered for charge – see Moore. It may be evident from previous convictions or a background of threats of violence previously – see Langford [2017] EWCA Crim 498 as an illustrative case found below.

In Moore [2015] EWCA Crim 1621, the parties had a turbulent relationship. Offence 1: the appellant grabbed and bit her right wrist, causing indentation and bruising. Offence 2: the appellant put the electric window of their car up, trapping her arm and causing bruising. Offence 3: the appellant came into the room and punched her legs causing pain for some time afterwards. Offence 4: The appellant kicked and punched the complainant. He threatened to set fire to one of the dogs, resulting in her sitting in front of the dog's cage and throwing a glass of water over him. He grabbed a pair of scissors, cut her fringe, took her nail polish remover and threatened to pour it over the dog and set fire to the dog. The incidents were charged as ABH but the prosecution accepted pleas to common assault as the complainant declined to give evidence. The Court expressed concern that its sentencing powers had become “inadequate” due to decisions taken by the prosecuting authority and observed that “repeated bullying violence against a single victim exploiting a relationship is serious, even where no serious physical injury occurs”.

In Fazli  [2009] EWCA Crim 939 the appellant pleaded guilty to ABH against his wife, within a background of regular physical and emotional abuse. She wrote to the Court saying that she did not want the appellant to stay long in prison as she did not want her children to know their father was in prison, as she perceived it, because of her. The Judge said that the incarceration was entirely due to the appellant’s behaviour and that what had been expressed in the letter was a familiar consequence of controlling and intimidating behaviour of defendants. It was held on appeal that the Judge was right to observe this and to disregard the letter. Sentencing is not solely determined by the wishes expressed by the victim; prosecutors should not necessarily stop such cases from going forward to trial, conviction and sentence.

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. Prosecutors should charge identified incidents of assault as appropriate, however, an additional charge of controlling or coercive behaviour should usually 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.

Assaults on Emergency Workers and Public Servants

An offence of common assault, or battery, committed against an emergency worker acting in the exercise of functions as such a worker is triable either-way, with a maximum penalty on indictment of imprisonment for a term not exceeding 12 months, or a fine, or both – section 1 Assaults on Emergency Workers (Offences) Act 2018.

Prosecutors should have regard to the Assaults on Emergency Workers (Offences) Act 2018 Guidance. It provides that:

“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.”

This is in order to reflect Parliamentary intent in providing for greater sentences for such assaults.

Prosecutors should also have regard to

  • The ‘Guidance on Management of Potential Exposure to blood-borne viruses in emergency workers’. It advises on the risk of infection through injury of Hepatitis B, Hepatitis C and HIV. It further provides advice on the management of spitting incidents, low risk incidents, the provision of timely clinical advice and suggestions on cross service collaboration.
  • The section in the guidance that provides guidance on common assault and battery as alternative offences and on application of the phrase ‘when carrying out emergency functions’. 

In McGarrick [2019] EWCA Crim 530 the appellant resisted arrest by pushing and pulling away. He struck the officer to the side of his face causing pain to the officer’s cheek, and to his upper and lower teeth and gums. The officer fell during the struggle resulting in marks to his arms. 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 provided relevant guidance that should be considered at the charging stage:

  • 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.
  • It is helpful to adopt the decision-making structure that characterises Sentencing Council's Guidelines. The harm caused in this instance was not especially serious, but nor was it at the trivial end of the scale. In the context of the offence in question it could properly be regarded as greater harm and a case of higher culpability – the offending was deliberate, determined and premeditated, and it was sustained. This, therefore, would be offending at the lower end of Category 1 or the upper end of Category 2, if there were guidelines for the 2018 Act.
  • The starting point before consideration of aggravating and mitigating features might not be as high as six months, but there was no mitigation; and when regard is had to the aggravating feature of the appellant's very bad record, a period of six months was a proper notional sentence after a trial.

This case therefore offers some assistance when considering allocation and confirms that even when within magistrates’ court powers, a significant sentence will follow, one materially different from that to be expected upon conviction for the offences which, prior to this legislation, would have been charged.

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.

Common Assault – s.39 Criminal Justice Act 1988

An assault is any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence.

The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person. Where there is a battery, the defendant should be charged with ‘assault by beating’: DPP v Little [1992] QB 645. Provided there has been an intentional or reckless application of unlawful force the offence will have been committed, however slight the force.

Assault, as distinct from battery, can be committed by an act indicating an intention to use unlawful violence against the person of another – for example, an aimed punch that fails to connect. In Misalati [2017] EWCA 2226 the appellant spat towards the complainant. The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.

Guidance on potential defences is set out in the separate legal guidance Self-defence and the Prevention of Crime. A person may use such force as is reasonable in the circumstances for the purposes of:

  • self-defence
  • defence of another
  • defence of property
  • prevention of crime; or
  • lawful arrest.

An element of the offence of common assault is lack of consent so that the prosecution may (where it is a live issue) have 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). Most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact: Collins v Wilcock [1984] 1 WLR 1172.

Common assault is a summary offence. However, if the requirements of section 40 of the Criminal Justice Act 1988 are met it can be included as a count on an indictment.

Assault occasioning Actual Bodily Harm (ABH) – s.47 OAPA 1861

The offence is committed when a person intentionally or recklessly assaults another, thereby causing Actual Bodily Harm. It must be proved that the assault (which includes “battery”) “occasioned” or caused the bodily harm. 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 [1934] 2 KB 498).

The House of Lords in DPP v Parmenter [1992] 1 AC 699 held that the mens rea of this offence is the same as that for battery; all that need be proved further is that actual bodily harm in fact followed.

There is some ambiguity as to the ambit of this offence. In DPP v Smith [2006] EWHC 94 (Admin) the court determined that the offence of ABH had been committed but acknowledged that common assault could have been prosecuted. The appellant used kitchen scissors to cut off the complainant’s ponytail and some hair off the top of her head without her consent. Harm may therefore include the substantial cutting of a person’s hair. The court stated that in ordinary language, “harm” is not limited to “injury” but extended to hurt or damage, and that “bodily”, whether used as an adjective or an adverb, is “concerned with the body” and not limited to skin, flesh and bones. “Actual”, as defined in the authorities, means that the bodily harm should not be as trivial or trifling as to be effectively without significance. Evidence of external bodily injury, or a bruise or break to the skin, is not a necessary ingredient, and neither is physical pain consequent upon the assault.

The House of Lords held in Brown (Anthony Joseph) [1994] 1 AC 212 that in the absence of good reason, the victim's consent is no defence to a charge under the Offences against the Person Act 1861. A number of cases have held what constitutes good reason, and what does not.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH. 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. In R v Chan-Fook [1993] EWCA Crim 1 the court held that the phrase "actual bodily harm" can include psychiatric injury where this is proved by medical evidence but it did not include emotions, such as fear or panic, nor states of mind that were not themselves evidence of some identifiable clinical condition. Any allegation of actual bodily harm based on psychiatric injury, which was not admitted by the defence, should be supported by appropriate expert evidence. In the absence of such evidence, the question of whether an assault had occasioned psychiatric injury should not be left to the jury and there should be no reference to the victim's mental state following the assault unless it was relevant to some other aspect of the case.

Common assault or ABH: Decision on charge

Where assault involves battery that is more than transient or trifling (R v Donovan [1934] 2 KB 498), the prosecutor has to determine whether a charge of common assault or ABH is appropriate. There is an overlap, as recognised in DPP v Smith [2006] EWHC 94 (Admin).

A prosecutor should consider the following:

  • The culpability of the offender, the injuries suffered by the complainant and the overall harm caused;
  • Aggravating factors in the case;
  • The likely sentence on conviction.

It is for the prosecutor to consider all the circumstances to arrive at a decision on the appropriate charge. Principles which may inform that decision are as follows:

Battery 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 unless there is a significant change in circumstances that affects the seriousness of the offence Indeed, a charge of ABH should not be lessened to one of battery or vice-versa unless there has been a change of circumstances or the original charge selected was clearly wrong.
  • In most cases it should be possible to determine the charge by concluding that the injuries caused are serious or less serious. Serious injuries include damaged teeth or bones, extensive and severe bruising, cuts requiring suturing and those that result in loss of consciousness. That the injuries required medical treatment, because they could not be treated by the victim alone and required medical assessment at least, may indicate a serious injury.
  • The appropriate charge will usually be contrary to section 39 where injuries amount to no more than the following:
    • Grazes;
    • Scratches;
    • Abrasions;
    • Minor bruising;
    • Swellings;
    • Reddening of the skin;
    • Superficial cuts.
  • Whilst the level of charge will usually be indicated by the injuries sustained, ABH may be appropriate in the circumstances of the case including where aggravating features set out below are present:
    • the circumstances in which the assault took place are more serious e.g. repeated threats or assaults on the same complainant or significant violence (e.g. by strangulation or repeated or prolonged ducking in a bath, particularly where it results in momentary unconsciousness.)
    • there has been punching, kicking or head-butting (as distinct from pushing or slapping which would fall to be dealt with as battery)
    • a weapon has been used
    • the victim is vulnerable or intimidated – see sections 16(2) and 17(2) Youth Justice and Criminal Evidence Act 1999 . This may include: a pattern of similar offending against the victim, either in the past or in a number of offences to be charged; relevant previous convictions; whether the victim would likely be the beneficiary of special measures.
  • Where the harm caused is serious, ABH should be charged, even if that was not intended by the offender: see Abbas [2009] EWCA Crim 1386 where one punch resulted in the complainant hitting his head on the pavement, resulting in loss of consciousness. A relevant previous conviction and the commission of an offence on bail merited a sentence of 15 months’ imprisonment.

See above for Moore, and a further example which illustrates this:

R v Langford [2017] EWCA Crim 498 - The appellant grabbed the complainant’s neck with his hands, locked his arms and squeezed. He spat in her face. After he let go he squeezed her neck again so she was unable to speak. He swore and said, “I am going to kill you”. He seized her neck a third time. She had bruising around the neck and described the event as the ‘most frightening thing that had ever happened to her’. He pleaded guilty to ABH. Court found this was a case of greater harm because it involved a sustained or repeated assault on the victim; that the circumstances of the offence demonstrated an intention to commit more serious harm than resulted. The appellant had two previous convictions for common assault upon previous partners and he was in breach of a suspended sentence when he committed this offence. This episode between the appellant and the complainant was not an isolated one - there had been a background of threats of violence previously.

Unlawful wounding/inflicting GBH – s.20 and wounding/causing GBH with intent – s.18

The words "grievous bodily harm" bear their ordinary meaning of "really serious" harm: DPP v Smith [1960] 3 W.L.R. 546. Golding [2014] EWCA Crim 889 indicates that harm does not have to be either permanent or dangerous and that ultimately, the assessment of harm done is a matter for the jury, applying contemporary social standards. Further, there is no necessity for an assault to have been committed before there could be an infliction of GBH: Golding.

Bollom [2003] EWCA Crim 2846 is of assistance to prosecutors when determining the appropriate charge. It clarifies that injuries should be assessed with reference to the particular complainant. That person’s age, health or any other particular factors all fall for consideration. The court said, “To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.”

The guidance in cases such as Golding and Bollom should be applied when determining whether the injury amounts to ABH or GBH. Once again, the level of injury should usually indicate the appropriate level of charge but there may be some truly borderline cases where the factors above (outlined in relation to battery and ABH) are also relevant. Life-changing injuries should be charged as GBH. Just as the need for medical treatment may indicate ABH injuries, significant or sustained medical treatment (for instance, intensive care or a blood transfusion) may indicate GBH injuries, even if a full or relatively full recovery follows.

A "wound" means a break in the continuity of the whole skin – JJC (A Minor) v Eisenhower [1983] 3 WLR 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 these offences should be reserved for those wounds considered to be really serious. However, it is appropriate to charge these offences when a wound is caused by a knife or other weapon, to reflect the seriousness.

An indictment alleging section 20 or section 18 should:

  • Specify whether:
    • the allegation is based on the defendant committing an assault and/or wounding
    • the allegation is based on grievous bodily harm or a wound resulting:
    • this is good practice for clarity, and otherwise an alternative verdict may not be available: McCready [1978] 1 W.L.R. 1376 (section 18 can be committed without the need for a wound or an assault and so neither section 20 nor battery were available as alternative charges – but would have been had the section 18 pleaded that it was committed by wounding and/or an assault, and/or that the grievous bodily harm alleged was a really serious wound)
  • Add a count contrary to section 20 if this alternative is to be left to the jury: Lahaye [2005] EWCA Crim 2847. This is good practice, urged by the Court of Appeal, even though this alternative is available by virtue of section 6(3) Criminal Law Act 1967; this alternative is available notwithstanding section 18 refers to “causing” and section 20 to “inflicting”: Mandair [1995] 1 A.C. 208
  • Add a count contrary to section 47, which is also an alternative verdict: R v Wilson (Clarence George) [1983] 3 WLR. 686, if this is to be left to the jury.

The distinction between s18 and s20 the two offences is one of mens rea:

  • The prosecution must prove under section 20 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 section 20. 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 AC 699.
  • The prosecution must prove under section 18 that the defendant intended to wound and/or cause grievous bodily harm, and nothing less than an intention to produce that result, which in fact materialised, will suffice. A person ‘intends’ to cause a result if he/she consciously acts in order to bring it about. Factors that may indicate 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 gravity of the injury may be the same for section 20 or 18 although the gravity may indicate the intention of the defendant.

The maximum sentence for section 20 is five years’ imprisonment. For section 18 it is life imprisonment. Intent may often be a trial issue where section 18 is charged, and will often rely on inference, but proof by inference is proof nonetheless, and where there is sufficient evidence for a jury to be sure of this intention this should be left to a jury.

Sentencing for sections 18, 20 and 47 will result in different likely sentences and so pleas to lesser offences should not be accepted unless there has been a change in circumstances.

Cases involving the reckless or intentional transmission of sexual infection are particularly complex cases, and careful regard must be had to the separate legal guidance on Intentional or Reckless Sexual Transmission of Infection.

It is not possible to attempt to commit a section 20 GBH offence. An attempt to cause GBH should be charged as attempted section 18 because, as a matter of law, if a suspect attempts to cause really serious harm they 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 section 18.

It is appropriate to charge an attempted offence 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.

An offence contrary to section 18 may also be committed where the victim is wounded or caused grievous bodily harm in the course of the defendant resisting or preventing the lawful apprehension of any person. This offence may be used where the injuries amount to grievous bodily harm or injury but where the intention to resist or prevent a lawful apprehension is clearer than the intent to cause a wound or grievous bodily harm.

Assault with intent to resist arrest – s.38 OAPA 1861

This offence is committed when a person assaults another person with intent to resist arrest or prevent the lawful apprehension/detention of themselves 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 s.38 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. It is appropriate for injuries which fall short of GBH, where the second limb of s.18 is appropriate, but where the injuries plainly exceed those properly reflected as battery or, where the victim is an emergency worker, section 1 of the 2018 Act should be preferred.

Maximum sentence and racially and/or religiously aggravated assaults

Common assault, battery and offences contrary to sections 47 and 20 OAPA are capable of being charged as racially and/or religiously aggravated assaults, where the provisions of s.28 Crime and Disorder Act 1998 are met. This results in a different sentencing framework, as follows:

 

Offence

Maximum sentence

Maximum sentence – racially or racially aggravated offence (Refer to Racist and Religious Hate Crime, in CPS guidance)

Sentencing Council Guideline

Common assault / battery – section 39 Criminal Justice Act 1988

6 months’ imprisonment and/or fine not exceeding level 5

2 years’ imprisonment and/or a fine (triable either way)

Common assault / Racially or religiously aggravated common assault

Section 38

2 years’ imprisonment

 

Assault with intent to resist arrest

Section 47

5 years’ imprisonment

7 years’ imprisonment and/or a fine (triable either way

Assault occasioning actual bodily harm / Racially or religiously aggravated ABH

Section 20

5 years’ imprisonment

7 years’ imprisonment and/or a fine (triable either way

Inflicting grievous bodily harm/Unlawful wounding / Racially or religiously aggravated GBH/Unlawful wounding

Section 18

Life imprisonment

 

Causing grievous bodily harm with intent to do grievous bodily harm / Wounding with intent to do GBH

Throwing corrosive fluid on a person – s.29 – 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 s.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.

Where injury is caused, the likely appropriate charge will be contrary to section 18. Where injury is not caused, s.29 is likely to be the appropriate charge: see by way of illustration: R v Adrian Kuti (1994) 15 Cr. App. R. (S.) 260. For further indications of the seriousness with which this offending is treated, see: R v Riley [2017] EWCA Crim 243, R v Midmore [2017] EWCA Crim 533, R v Isaac [2016] EWCA Crim 1907.

Threats to kill – s.16 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 s.4 or s.4A Public Order Act 1986 (see Public Order offences incorporating the Charging Standard) or other offences such as at s.1 Malicious Communications Act 1988, s.127 Communications Act 2003 may be appropriate.

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.

Other OAPA 1861 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 s.21 OAPA 1861
  • Causing to be taken or administering a drug with intent to enable the commission of an indictable offence, contrary to s.22 OAPA 1861
  • Administering poison or noxious thing thereby endangering life or inflicting GBH, contrary to s.23 OAPA 1861.
  • Administering poison or noxious thing with intent to injure, aggrieve or annoy, contrary to s.24 OAPA 1861. R v Veysey[2019] EWCA Crim 1332 provides guidance on charging and on what may amount to a “noxious substance”. Where an issue arises as to whether a substance is a noxious thing for the purpose of section 24 of the 1861 Act, it will be for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be properly so regarded, it will be a matter for the jury whether they are satisfied that it was a noxious thing within that definition. In Veysey’s case, the judge below had been entitled to find that a cupful of human urine, from an unknown source, thrown at the face of a victim was capable of being regarded as noxious. Actual or potential injury / harm is likely to indicate that a substance is noxious but that is not an exhaustive definition and it may extent on the facts to any hurtful or unwholesome substance.
  • Causing bodily injury by explosives, contrary to s.28 OAPA 1861. Unlike offences under the Explosive Substances Act 1883, causing bodily injury contrary to s.28 OAPA 1861 does not require the consent of the Attorney General. For guidance as to the Explosive Substances Act, refer to Explosives, in the Legal Guidance.

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 s.1 of the Act as someone “designated” by the Secretary of State. The offence is summary only and carries a maximum of 6 months’ imprisonment.

This offence is not superseded by the new offence at in section 1 of the 2018 Act as most immigration officers are not covered by the definition of an emergency worker at section 3. The only members of the immigration enforcement/border force workforce who are covered are:

  • those working in some detention roles and therefore covered by the ‘custody officer’ definition
  • those (very limited) number who exercise police powers, and who are therefore covered by the policing definition when exercising these powers.

The section 1 offence in the 2018 Act should be prosecuted if prosecutors establish that the immigration officer falls within the definition of an emergency worker.

Sentencing guidelines for assault on a police constable in the execution of his duty apply to the s.22 offence.

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.

See:

Cooksey [2019] EWCA Crim 1410 where false imprisonment occurred within the context of coercive and controlling behaviour in a domestic setting.

Ward [2018] EWCA Crim 414 where the court identified aggravating factors for the particular case; gratuitous degradation of the victim; abuse of power over the victim in his own home; previous violence or threats towards the victim in the context of a series of offences; threats made to stop the victim reporting the offending.

Ill-treatment or neglect, contrary to section 44 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 (s.2 (1) MCA).

It is immaterial if the impairment or disturbance is permanent or temporary (s.2(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 (s.2(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 (s.2(4)). Accordingly, there must be evidence to support the fact that the person lacked mental capacity at the time the offence was committed.

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 the CPS guidance Older People: Prosecuting Crimes against, in the Legal Guidance.

Attempted murder, contrary to section 1(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 s.18 OAPA 1861. Another possible charge may be Making Threats to Kill. Courts will pay particular attention to counts of attempted murder and any such count merits scrutiny to ensure it is only pursued where 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 WLR 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.

Reasonable punishment of a child

Section 58 of the Children Act 2004 applies to children under the age of 18 in the circumstances set out at s.65 and removes the defence of reasonable punishment 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 charges of common assault or battery. In a case where this defence may be a live issue, the focus must be on whether the injury is more than transient or trifling and accordingly whether the defence is available or not: A v UK (1999) 27 EHRR 611.

The Court of Appeal in the case of R v H, The Times, 17 May 2001 adopted the guidance set out in A v UK and considered the factors to be taken into account where a defence of reasonable punishment is raised:

  • 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

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