Boris’ Sentencing Bonanza – Part One

This week, the Lord Chancellor and Secretary of State for Justice, Robert “fuck the law” Buckland QC, launched a new white paper A Smarter Approach to Sentencing, which outlines the government’s latest proposals for punishing law breakers who aren’t members of the Tory party. Keen to spare us the misery of digesting all 115 pages ourselves, ACAB’s own Legal Andy is here with the first of a series of articles on the Tories’ plans to lock more people up for longer.

Proposal 1: Assaulting an Emergency Worker (AEW) – Increasing the maximum sentence from one year in prison to two.

This don’t sound like good news and it ain’t! But there is a bronze lining (a link to the details of the Assaults on Emergency Workers (Offences) Act 2018 is at the end).

This offence was invented in 2018 from a private members bill the government adopted. The emotional appeal was to punish people who battered nurses and other “nice and vulnerable” emergency workers. But guess what the vast majority of prosecutions have been for assaulting cops.

Now confusingly the offence of assaulting a police officer in the course of their duty still exists (s89(1) Police Act 1996). You can still be arrested for it but the Crown Prosecution Service (CPS) will prosecute it as AEW. The significant difference other than higher penalty is that the Emergency Worker only has to be “acting in the exercise of functions as an emergency worker” lower test than “acting in the course of their duty”.

To get a clear picture of how this will work we need to see how this offence fits into the scheme of criminal law.

Assault is when unlawful force is used on or apprehended by another person. Assault can happen without physical contact even happening. If you actually use force on someone it’s a battery. If you do both it’s assault by beating. All varieties are both a criminal offence s39 Criminal Justice Act 1988 (6 months or unlimited fine maximum) and a Tort (you can sue in civil courts someone who assaults you for damages).

There are more serious offences if the assault causes more than minimal harm. Progressivly these are Assault Causing Actual Bodily Harm (ABH), Grievous Bodily Harm (GBH), GBH with intent, attempted murder, manslaughter and murder. The lines between Common Assault, ABH and GBH are blurred (see CPS charging standard below). But what we’re actually dealing with in AEW are assaults where no one is really hurt, or in most cases just the defendant. The trivial nature of the offence and its predecessor shows its true role to back up the police and by implication state authority.

There are also a range of offences for assaults in specific circumstances. The most relevant is s38 of the Offences Against the Person Act 1861 (link below). Assault with intent to prevent arrest. This has a maximum sentence of two years and theoretically covers most assaults the cops receive. However it is rarely used as a stand alone prosecution because the penalty allows defendants a jury trial. Both because it’s more expensive for the state and more likely to result in defendants getting off.

Assaulting a police officer in the course of their duty was introduced in 1875 Criminal Law Act for the specific purpose of having an offence that was only triable in the Magistrates Courts (commonly known as police courts at the time as the police also prosecuted). While the doubling of the maximum penalty in 2018 gave defendants the option of trial in the Crown Court few exercised it. Magistrates also kept sentencing in the range of the former offence to discourage what could be a 20.000 (=20%) increase in crown court cases if everyone took the option. Draft sentencing guidelines have been put out for consultation but are not yet in force and will need to be revised.

So to the Bronze lining: you can place your fate in the hands of the 12 good and true honest juryfolk and hope for the best. You need 10 out of 12 to get off and just 3 out of ten to secure a retrial and the chance of it being dropped. Even if you get convicted being sentenced by a Crown Court Judge used to sending down robbers and burglars is often better than Magistrates for whom your case may be the highlight of their year.

[NB. You cannot attempt Summary only offences such as assault PC but you can attempt AEW, though we don’t know of any prosecutions of protestors for attempt yet. You can commit common assault recklessly. Some more serious offences require a specific intent].

Lastly you will inevitably come across people who say the police are only doing their job and should be protected. There’s a lot that can be said about this line of argument, but here we’ll limit ourselves to its (implicit) misrepresentation of the police’s approach physical violence.

The vast majority of people are hesitant about battering others, most by inclination, some by fear of the consequences. The cops suffer from neither of these problems. They are trained to resolve conflicts and even trivial disagreements by overwhelming force and they are virtually immune to punishment when they use excessive force. One of the catchphrases in setting up this new offence was “I don’t go to work to be assaulted”. Fair enough for firefighters and health workers but totally the opposite for cops. They’ve volunteered for a job in which physically restraining people is at the core of their activity. Whatever other reasons people have for joining the police no one joins who fears or dislikes physical violence.   

For example people play rugby for a variety of reasons like keeping fit or jumping in the mud but no one except bullied public schoolboys plays rugby if they don’t like roughing people up. Difference is it’s consensual.

Without opening the whole can of police abolition/reform debate remember the old adage that the last person you want to be the public executioner is someone who wants to do it.

Links:

The Crime.

https://www.cps.gov.uk/legal-guidance/assaults-emergency-workers-offences-act-2018

More Crimes

https://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents

How they choose which crime you’re going to be done for.

https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard

Sentencing Guidelines for assault


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