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12 March 2021

General Offences Series: Assaulting an Emergency Worker

6 mins

The relatively new offence of Assaulting an Emergency Worker acting in the exercise of their functions, was brought into force in November 2018. It aims to criminalise common assault and battery against workers that protect the public in emergency situations, with the Court having more severe sentencing powers than would otherwise be available if the offence was committed against a member of the public.

According to the Ministry of Justice, the policy rationale for introducing the Assaults on Emergency Workers (Offences) Act 2018 was that ‘An assault on any individual or citizen in our society is a terrible thing, but an assault on an Emergency Worker is an assault on us all. These people are our constituted representatives. They protect society and deliver services on our behalf. Therefore, an attack on them is an attack on us and on the state, and it should be punished more severely than an attack simply on an individual victim’.

Case law is yet to evolve and the Sentencing Guidelines remain under consultation, but Catherine Jackson and Ed Hodgson explain the significance of the new Act on old acts.

What are common assault and battery?

A battery is committed when a person intentionally or recklessly applies unlawful force to another. A common assault is committed where a person intentionally or recklessly causes another person to expect immediate, unlawful violence even if that violence is not forthcoming.

The application of force is not always unlawful. For example, it can be applied by accident, by consent, in the course of lawful sport or in reasonable self-defence. It does not always need to result in an injury but generally common assault and battery captures the sort of conduct that results in grazes, scratches, minor bruising, swelling and superficial cuts. More serious injuries would usually be prosecuted as Actual Bodily Harm or Grievous Bodily Harm which are covered elsewhere.

Where are common assault and battery tried?

Common assault and battery have long been triable only in the Magistrates Court where the maximum sentence that can be imposed is six months imprisonment.

What is an assault on an emergency worker and where is it tried?

The same application of force, if committed against an Emergency Worker who is carrying out their functions, can now be tried in the Crown Court if the Magistrates think their sentencing powers are insufficient or the defendant wishes to be tried by a jury. The maximum sentence is 12 months’ imprisonment, which means that for the first time, an alleged push or a shove without a corresponding injury could be tried in front of a jury in the Crown Court, with a risk of a custodial sentence.

Emergency Workers include:

  • Fire and rescue operatives
  • Paramedics and medical professionals
  • Prison officers
  • Off-duty workers who put themselves on duty in order to help in an emergency
  • Somewhat controversially, police officers

Assaulting a police officer in the execution of their duty has until now been prosecuted under section 89 Police Act 1996 where the offence was only triable in the Magistrates Court and it attracted a maximum sentence of six months imprisonment. Although the old offence has not been replaced by the new offence, the Crown Prosecution Service are now encouraged to prosecute assaults which would previously have come under section 89 Police Act 1996 as more serious offences contrary to section 1 of the Assaults on Emergency Workers (Offences) Act 2018. 

Indeed, in the year following the introduction of the new offence, the Crown Prosecution Service prosecuted almost 20,000 offences of Assault on an Emergency Worker. Of these, 90% of the allegations related to assaults against police officers. 

This suggests that those most likely to be the alleged victims of assaults at work are those who themselves are able to use an element of force against the public when carrying out their duties, if reasonable and necessary. There will frequently be situations where the alleged assault on a police officer arises after the suspect has already been detained and in circumstances where the suspect believes their arrest or detention is unlawful.

The new offence of Assaulting an Emergency Worker takes place when that worker is acting in the ‘exercise of their functions’ as opposed to the ‘execution of their duty’ under section 89 Police Act 1996. Under the old offence, it was clear that where an officer had exceeded their powers or taken themselves off duty by committing an offence such as an assault, then the prosecution would not be able to prove that the officer was acting in the execution of their duties and this would constitute a defence to the allegation.

It is unclear as yet the extent to which the Courts will consider ‘exercise of functions’ to be aligned with ‘execution of duty’ when considering the conduct of police officers and other emergency workers who are acting unlawfully at the time of the alleged offence.

What is the likely sentence for Assaulting an Emergency Worker?

In theory, the Court has a power to sentence up to 12 months imprisonment and/or impose an unlimited fine for Assaulting an Emergency Worker. However, in practice the range could be anything from a fine up to a year in prison. The Sentencing Guidelines Council issue guidelines for most criminal offences. The draft Sentencing Guidelines for Assaulting an Emergency Worker are currently under consultation pending a review of sentences imposed since the new offence became law. In the meantime, the draft Guidelines set out the likely sentencing range depending on the culpability of the defendant and the amount of harm caused.

Despite the Act providing for the possibility of a fine, this is not contemplated within the draft Sentencing Guidelines where even the lowest form of culpability and lowest level of harm can attract a high-level community order.

At a time when the police and public alike are confused by new offences and obligations imposed in response to the Covid-19 pandemic, and when HM Chief Inspector of Prisons has found that rehabilitation has ground to a halt in prisons that are unsafe, we await the final Sentencing Guidelines and case law with interest.

Why instruct Bindmans

Our Criminal Defence Team have considerable experience successfully defending clients who have been accused of assault. We know that the circumstances are very rarely as they first appear. If you have any questions you can complete the form below or call the direct line number to speak to our specialist team +44 (0) 20 7014 2020 or in the case of emergency, call +44 (0)20 7305 5638 for our out of hours police station assistance.

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