Memorandum of Understanding on Offences against Emergency Workers

Introduction

1. This Memorandum of Understanding (MoU) explains how assaults committed against emergency workers will be dealt with by the Criminal Justice System, from reporting the crime to sentencing.

Purpose of this agreement

2. It aims to provide emergency workers with an understanding of:

• how assaults perpetrated on them should be dealt with by their organisations and other criminal justice agencies such as the Police, Crown Prosecution Service, and the courts,
• the revised prosecution approach to selecting the right charge for the case, and
• the role of the Sentencing Council Assault Guidelines when courts impose sentence following a conviction for an assault.

Victims

3. The Victims’ Code applies to all victims who have been subject to an assault or hate crime. Right 8 requires victims to be kept informed about the progress of their case at all stages of the investigation and any prosecution that follows. The victim’s point of view will be considered when making investigative and prosecutorial decisions.

Reporting an incident

4. Assaults on emergency workers are unacceptable, and it is important they are reported in accordance with their agreed procedures or to the police.

Investigation

5. The investigators conducting the investigation should impartially follow all reasonable lines of enquiry to gather material which points both towards and away from a suspect. This process may result in the suspect being prosecuted in and sentenced by the courts on conviction, or an out-of-court disposal or resolution, or no further action being taken. Evidence is gathered to establish what happened, who was involved, and where appropriate, statements are taken from witnesses to support the evidence.

6. The College of Policing has prepared overviews of charging and case preparation and other possible outcomes. The police investigate assaults but a police officer or staff investigator must not lead or participate in the investigation of their own incident, nor should they handle witness statements or other investigative tasks. Similarly, complainants in any relevant organisations should not investigate their own assaults internally. Referring a crime to the police does not automatically mean that a full police investigation will take place or that the CPS will be consulted or that a criminal prosecution take place. Further, investigation should consider the victim’s wishes. In general, the more serious the circumstances, the more likely it is that an investigation will commence automatically.

7. Police crime definitions explain that ‘Violence Against the Person includes a range of offences from minor offences such as harassment and common assault to serious offences such as murder, actual bodily harm and grievous bodily harm.’ ‘Minor/less serious offence’ should never be understood as an offence that is not taken seriously by the CJS.

8. Guidance on Management of Potential Exposure to blood-borne viruses in emergency workers was published in September 2019 by Public Health England. 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.

9. Victims will be offered the opportunity to complete a Victim Personal Statement in their own words, and this will be used to explain to the court the impact of the offence on the emergency worker. It should ideally be obtained at charge to clarify the impact on the victim, informing the level of charge and prosecution case, and may be updated for sentencing.

10. Community Impact Statements such as Prison Community Impact Statements (PCIS) can offer relevant information. The PCIS assists with the impact of an offence on the prison. It addresses implications for control, order, and fear of crime unique to the prison environment.

11. An Organisational Impact Statement enables an organisation to set out the impact a crime has had on their service, for example, operational disruption. It is prepared by a nominated representative who is authorised to make the statement.

Out of Court Resolutions (OoCR)

12. An OoCR tackles low-level crime and may take the place of a prosecution as a proportionate and effective response that can focus on the needs of the victim, see the Code for Crown Prosecutors. The victim may prefer the offence to be dealt with in this way if eligibility criteria are met. No OoCR is possible if there is insufficient evidence.

13. Sometimes an OoCR meets the public interest in the case. The police or a prosecutor may determine the public interest is better served by offering an out-of-court disposal instead of a prosecution. Part of the public interest lies in the seriousness of the offence based on the suspect’s culpability and the harm caused.

14. Restorative Justice is a process that can be used as part of an OoCR. It brings those harmed by a crime or conflict and those responsible for causing the harm into communication, enabling everyone affected by the incident the chance to take part in repairing the harm and finding a positive way forward. This communication can take various forms, including a face-to-face meeting using a facilitator, a letter or video message. Outcomes can include formal disposals such as a conditional caution.

15. Police officers have access to an adult and a child gravity matrix that guide their decision making. The Crime in Prison Referral Agreement with its Annex C assists Prisons in their interaction with the police and management of assaults on members of staff. It addresses staff assaults, advising that minor assaults (e.g., pushes, grabs, minor injuries) may be handled internally. However, prisons must refer to police if staff request it or in cases involving transfer of bodily fluids like biting or spitting. Each incident should be individually assessed for potential police referral. The NHS and Fire services rely on their violence reduction strategies to consider internal resolution mechanisms or referral to the police, for example the NHS’s violence prevention and reduction standard.

16. An OoCR can provide:

• Reparation and a prompt resolution for victims, ensuring swift and streamlined justice is secured
• An opportunity for offenders to be directed into rehabilitative or educational services to tackle the causes of offending behaviour and reduce the likelihood of re-offending (there are specific interventions for offences against emergency workers, depending on the police force area).

17. An OoCR for offences against emergency workers may include:

• Community Resolution - Adults 18+ and Children 10-17
• Simple Caution - Adults 18+
• Youth Caution – Children 10-17
• Conditional Caution - Adults 18+ and Children 10-17
• Consideration of a financial penalty or compensation

18. Conditions in a conditional caution should be completed within 16 weeks. Breach can result in prosecution for the original offence.

Charging Decision

19. Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test. This requires, first, asking whether there is sufficient evidence for a realistic prospect of conviction and, second, if there is sufficient evidence, whether a prosecution is required in the public interest. If the evidential stage is not met, the case cannot be charged. If it is met, a prosecution will usually follow unless the factors against a prosecution in the public interest outweigh those in favour.

20. The Division of Charging Responsibility within the DPP Guidance on Charging determines whether a prosecutor or the police will make the charging decision. Prosecutors or police are required by para. 6.1 Code for Crown Prosecutors to select charges that reflect the seriousness and extent of the offending, which give the court adequate powers to sentence and impose appropriate post-conviction orders and enable the case to be presented in a clear and simple way. This means that prosecutors may not always choose or continue with the most serious charge where there is a choice, and the interests of justice are met by selecting the lesser charge.

21. CPS guidance requires selection of the most appropriate offence in line with the requirements of section 6 of the Code for Crown Prosecutors. The approach would be based on the culpability of the offender, the level of injury suffered, and the overall harm caused. Aggravating factors and the likely sentence to be imposed would also be considered. Charges that reflect the offence's severity, provide adequate sentencing powers, and ensure a clear presentation of the case would be those selected. The guidance sets out this approach:

1. Does the offence amount to ABH or GBH? If so, ABH or GBH will likely be the most appropriate charge. ABH means more than transient or trifling harm was caused and includes injuries like loss of consciousness, serious bruising, damaged teeth, cuts needing stitches, and small fractures. GBH involves really serious harm, such as a severe wounding or life-threatening or life-changing hospitalisation. The sentencing court would follow ABH, s.20 or s.18 GBH Sentencing Council guidelines. Factors that increase the seriousness of the offence for sentencing purposes include; the offence was committed against an emergency worker acting in the exercise of functions as such a worker and it was committed against a person providing a public service, performing a public duty, or providing services to the public.
2. If the offence does not amount to ABH or GBH, are multiple culpability and/or aggravating factors present as per the sentencing guidelines for assault upon an emergency worker? Would the case fall to be sentenced as a Culpability A, Harm 1 case with further culpability, harm, and/or aggravating factors additionally present? If so, s.1 AEW 2018 will likely be the most appropriate charge. Aggravating factors include crimes against public service providers, public duty performers, or those assisting emergency workers. Mitigating factors, also considered by the court, influence the overall assessment.
3. Section 1 AEW 2018 will likely be the most appropriate charge if the victim suffers more than minor physical or psychological harm/distress and factors present include any combination of:
   • Intention to cause fear of serious harm, including disease transmission
   • Victim obviously vulnerable due to age, personal characteristics, or circumstances
   • Prolonged/ persistent assault
   • Use of substantial force
   • Strangulation/ suffocation/ asphyxiation
   • Threatened or actual use of weapon or weapon equivalent
   • Leading role in group activity
4. If multiple culpability and/or aggravating factors are not present, then existing summary offences are likely to be the most appropriate charge. The specific occupational offences¹ have a maximum sentence of 6 months' imprisonment. They will be deemed appropriate where there is a low level of injury, or no injury is suffered. It will include situations where the victim suffered minor bruising, superficial cuts, scratches or reddening of the skin. They can be swiftly dealt with in the Magistrates’ Court.
5. If the victim is from a profession that is not covered by a specific occupational offence, (for example, an NHS worker) battery may be charged where the offence falls in the third category.

Challenging a decision

22. If the emergency worker disagrees with a police decision not to proceed with an investigation, this should initially be raised locally with the police force in accordance with the police victim right to review information available on the force’s website.

23. If an emergency worker disagrees with a CPS decision, they can invoke the CPS Victims' Rights to Review. This allows them to request a review of decisions not to charge, discontinue, or terminate proceedings. Where the police disagree with a CPS decision, an appeal process exists.

24. Guidance on the CPS Feedback and Complaints policy should be followed where appropriate. The CPS considers a complaint to be “an expression of dissatisfaction about any aspect of our service by a member of the public or their representative who has been directly involved in the service complained of.”

Prosecution

25. A defendant may offer to plead guilty to an offence other than the one charged. Prosecutors should only accept a plea if:

• the court is able to pass a sentence that matches the seriousness of the offending
• it provides the court with adequate powers to impose other ancillary orders, considering these can be made with some offences but not with others; and where practicable, the victim has been consulted

Sentencing

26. The Sentencing Council, established by the Coroners and Justice Act 2009, issues sentencing guidelines that courts must follow unless the interest of justice dictates otherwise. It considers the seriousness of the offence based on culpability and harm. Assault guidelines from the Sentencing Council took effect on 1 July 2021.

Commencement

27. This MoU will take effect on 16 July 2025 and will be subject to regular review. The parties can be contacted at:

CPS: Contact Us

Prisons: Start - Contact the Ministry of Justice

Fire: Contacts - NFCC

Police: [email protected]

NHS – Department of Health: [email protected]