*UPDATE: Since publishing this article, sentencing practice in relation to assaults on emergency workers has been examined by the Court of Appeal in McGarrick  EWCA Crim 530. Please see this article for further analysis.*
ASSAULTING EMERGENCY WORKER – A NEW OFFENCE
The main purpose of the 2018 Act was to create an aggravated form of common assault where committed against an emergency worker. Section 1 of the 2018 Act states that the section “applies to an offence of common assault, or battery, that is committed against an emergency worker acting in the exercise of their functions as an emergency worker”. It therefore incorporates the existing common law offences of assault and battery within its definition.
A list of roles falling within the definition of “emergency worker” is set out at s.3(1) of the 2018 Act:
(a) a constable;
(b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
(c) a National Crime Agency officer;
(d) a prison officer;
(e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
(f) a prisoner custody officer, so far as relating to the exercise of escort functions;
(g) a custody officer, so far as relating to the exercise of escort functions;
(h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;
(i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
(j) a person employed for the purposes of providing, or engaged to provide—
(i) NHS health services, or
(ii) services in the support of the provision of NHS health services,and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.
It is submitted that this operates in a similar way to racially-aggravated offences by creating an entirely new offence of assaulting an emergency worker with a new set of elements to prove, as opposed to simply adding an aggravating feature when sentencing for a straightforward common assault.
Further, where a Defendant was accused of assaulting a police officer, previously they would be charged under s.89 of the Police Act 1996 with assaulting a police constable in the execution of their duty (or a person assisting a constable in the execution of their duty). CPS Guidance now provides that where a police constable has been assaulted, the new offence under the 2018 Act should be charged instead, effectively rendering s.89 obsolete.
Such offences are now being charged by the CPS in accordance with its guidance in the following terms:
“On (Date), at (Township), D assaulted (Name of Complainant), a (Specify the type of emergency worker from the list at S.3(1)), an emergency worker acting in the exercise of functions as such a worker.
Contrary to section 1(2) Assaults on Emergency Workers (Offences) Act 2018 and 39(2) Criminal Justice Act 1988.”
KEY FEATURES OF THE NEW OFFENCE:
The most obvious difference between a straightforward common assault and assaulting an emergency worker is sentence. Currently common assault carries a maximum sentence of 6 months, a fine not exceeding level 5 on the standard scale, or both. Assaulting an emergency worker carries a maximum sentence of 12 months, an unlimited fine, or both.
There are currently no sentencing guidelines for dealing with an offence of assaulting an emergency worker. It is respectfully submitted that when advising a client as to possible sentence, it may be helpful to look to the guidelines for basic common assault or of assaulting a police constable in the execution of their duty and to effectively “double” the sentence available for the equivalent offence until such guidelines are introduced. For example, an offence which previously would have attracted a sentence of 12 weeks custody could reasonably be estimated to attract 24 weeks custody under the 2018 Act – and an offence which may have attracted a sentence of a medium-to-high level community order may well now be treated as crossing the custody threshold.
Previously assaults on emergency workers were charged as straightforward common assaults, with the fact that the victim was an emergency worker being no more than an aggravating feature for sentence. This meant that they were summary only and Defendants had no option but to be tried in the Magistrates’ Courts. Experienced criminal practitioners will be aware of the clear disadvantage to Defendants facing allegations of assaulting police constables before a Lay Bench.
If tried in a Magistrates’ Court for assaulting an emergency worker and found not guilty, there is no power to find a Defendant guilty of common assault instead unless that charge is specifically laid as an alternative (Kerr v Director of Public Prosecutions (1994) 158 J.P. 1048).
Crucially, as a result of the new maximum sentence it is open to a Defendant to elect trial for the s.1 offence in the Crown Court before a jury. Although the sentencing powers of the Crown Court are greater, there are clear advantages to Defendants in electing jury trial for an offence where there is evidence to suggest misconduct on the part of the emergency worker.
However, if tried in the Crown Court it will be open to a jury to convict of straightforward common assault instead. This could happen where the jury are of the view that despite the emergency worker acting outside of their function, the Defendant is still guilty of an assault on the facts of the case. This means a Defendant may still receive a conviction if they elect jury trial, although they would face a lesser maximum sentence.
It is submitted that authorities relating to whether police constables were acting in the execution of their duty will apply to offences under the 2018 Act by analogy. It will remain a defence for a Defendant to demonstrate that the police constable was not acting in the execution of their duty when assaulted (see Kerr above) as this cannot be “the exercise of their functions as an emergency worker”.
Further, it is submitted that such a defence must now extend to allegations of assaulting emergency workers other than police constables – so that it will be a defence to such charges to demonstrate that the alleged victim stepped outside their functions as an emergency worker and could no longer be deemed to be exercising those functions.
Such a defence was not available where a Defendant was charged with common assault, but the victim’s role could arguably still have been considered for the purposes of sentence. In some ways this represents a step backward contrary to the intention of Parliament in passing the 2018 Act and shows the risk of passing “knee-jerk” legislation in response to social outrage.
STATUTORY AGGRAVATING FACTORS
S.2 of the 2018 Act creates a statutory aggravating factor for a range of serious violent offences where committed against emergency workers (including but not limited to threats to kill, assault occasioning actual bodily harm, assault occasioning grievous bodily harm, wounding with intent to cause grievous bodily harm, sexual assault, kidnapping and manslaughter). There is now a statutory requirement that the court announces when sentencing that the offence is aggravated in that way.
However, under s.2(6), a Court is not prevented from taking this aggravating factor into account in relation to other offences not listed in that section. As such it is clear that this section adds little to the existing sentencing regime – prior to the 2018 Act it was already an aggravating feature of many such offences where committed against those “working in the public sector or providing a service to the public”.
In cases where a Defendant pleads guilty to an offence but wishes to argue that the victim was not acting in the exercise of their functions within the strict definition of the 2018 Act, it is arguable that this would make a material difference to sentence – giving rise to grounds for a trial of issue.
A Defendant faced with the new charge of assaulting an emergency worker will need robust advice regarding powers and duties of the police and of emergency workers, evidence, possible sentence, and even mode of trial. There are clear benefits and risks to each route, and a Defendant’s decision will be a careful balancing act based on the facts and evidence in their case.
In cases involving serious misconduct on the part of the emergency workers, including police constables, a Defendant may even need advice regarding potential civil claims arising out of the case brought against them.
Other articles by Tony Williams include:
Tony Williams is able to give advice and representation in proceedings under this new legislation.
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