Activist legal update: Notorious ‘Common Assault’ penalty doubled

From November 19th 2018 an new offence of “Assaulting an Emergency Worker” has been created, which doubles the maximum penalty for Common Assault (Section 39 of the Criminal Justice Act 1988). The top sentence rises from six months imprisonment to a year if someone is “acting in the exercise of functions as an emergency worker” when they are assaulted.

The change was pushed forward as a private members bill by Chris Bryant MP, originally as a protection for NHS staff, but it also covers police and prison officers. They already had their own special law for being assaulted, section 89 of the Police Act 1996, but this has been superseded and all “assaults on constables acting in the course of their duty” will now be charged under the new offence. Here is a summary of what this means for people charged, focusing on activisty types.

  • Penalties will increase BUT we don’t know by how much. That is because there are no guidelines yet from the Sentencing Guidance Council. At the moment about 12% of people convicted of assault PC (no not assaulting the politically correct — police constable) get jailed. This will undoubtedly go up, and for for top end offenders will mean sentences of over six months. Very significant as it will put people inside longer than housing benefit is paid while you’re in prison.
  • You can have a jury trial. Since 1871 (s12 of the Prevention of Crimes Act) assaulting constables has only been triable in the Magistrates Court. The increase in sentence has, we think inadvertently, made it an “either way” offence which means it can be tried either in the Magistrates or the Crown Court where guilt or innocence is decided by 12 randomly selected members of the public. In either way offences the magistrates first decide where they think it should be tried, but crucially the defendant can choose to have a jury trial even if the bench and prosecution think it should be in the Clown Court, sorry, Magistrates Court. Needless to say your chances of getting off are far higher with a jury, but they do take longer to get to trial and this can only get worse if more cases go to Crown. Currently there are about 25,000 assault PC cases a year. We expect most to stay in the magistrates, but even a small percentage going to an already clogged system that can barely cope with the current 100,000 annual caseload this is likely to have a serious effect.
  • There is no definition of “exercising the functions of an emergency worker”. It looks broader than the old “acting in the course of their duty” which got a lot of people off in the past. We think it’s still more than just having the job and that it’s legally a “question of fact” that should be decided by the jury not the judge in a Crown Court trial. As with much else we expect the Court of Appeal to be busy sorting out the mess the new Act has created.


If you have a case please contact Green and Black Cross: gbclegal(at)riseup.net / 07946541511, or the Activist Court Aid Brigade: courtsupport(at)protonmail.com.