New Sentencing Guidelines on Assault – Victoria Lewis Summary

The Sentencing Council has published a new guideline for common assault, racially / religiously aggravated common assault and assault of an emergency worker, to come into effect for all cases sentenced on or after 1 July 2021, along with five other new guidelines.

The key structural changes are as follows:

a) Assault emergency workers: To reflect the increased maximum sentence of 12 months custody on indictment, Step 3 of the new guideline provides for an “uplift” where the assault is against an emergency worker, on a similar footing to racial / religious aggravation. This includes a requirement for the Court to state openly that the sentence has been aggravated as a result of this feature and to state what the sentence would have been without that aggravation.

b) Harm: instead of two categories for harm, there are now three categories, with consideration to be given to the number of injuries, severity of injury / pain suffered and the duration of any phycological harm / distress caused:

a. Category 1: “more than minor” physical or psychological distress.
b. Category 2: “minor” physical or psychological harm / distress.
c. Category 3: “No or very low level” of physical harm or distress.

This will undoubtedly be more useful than the previous assessment of an injury being “serious in the context of the offence”, as there is usually an argument that any injury in the context of a s39 offence could be considered serious, given that no injury is required for the offence to be made out. The distinction between “no”, “minor” and “more than minor” should be of more assistance to courts when distinguishing between the relatively broad range of cases dealt with through s39.

The assessment of harm and culpability remains as Step One, and in addition to the structured changes above, the culpability features have also been edited. Reference to premeditation has been removed from the guideline, in both greater and lesser categories. The lists are still non-exhaustive, but the removal may well reflect the fact that the nature of the offence does not lend itself well to establishing pre-meditation, as often s39 offences relate to reckless behaviour or a loss of temper or such like.  An aggravating feature of “strangulation” has been added, which is frequently seen in cases of domestic violence, and may help to capture the particular harm caused by that action. Fear of serious harm, including disease transmission, has also been added as a specific aggravating feature, which is clearly as a response to cases involving the threat of Covid-19 (see also factors increasing seriousness below). Finally the feature of prolonged assault is now included as a feature of culpability, rather than harm.

Step Two provides the basic starting points, with more delineation than before due to the addition of a middle category of harm. The starting point and range for the highest category (A1) remains the same as it was for Category 1 offences under the old guideline. Within Step Two, the factors increasing seriousness and reflecting personal mitigation are set out in the usual way. Additions to the aggravating factors include deliberate spitting or coughing, biting, and specific reference to transgender identity in terms of the offence being motivated by hostility towards that protected characteristic. The old features of location and timing are not included – many advocates feel that they were defunct in any event given that almost any location or timing could be phrased as an aggravating feature in most cases. Finally the previous feature of victims in a domestic context being forced to leave their home has been changed to the more catch all provision of the offence being committed in a “domestic context”. This solidifies the practice of sentencing courts, who would almost always reference the domestic context of an offence to be an aggravating feature.

In terms of factors reflecting mitigation or reducing seriousness, of note is the deletion of a lapse of time passing between the commission of the offence and passing sentence, where not due to the fault of the defendant. This is a somewhat curious change in the context of the backlog, given that sentencing courts regularly acknowledge that delays in the criminal justice system at the present time, do represent a mitigating feature in many cases.

The features of a single blow and isolated incident are removed from the list (although again this is a non-exhaustive list as before), which may reflect the reality that many s39 offences would involve these features, and if they did not, it would be captured by the step 1 assessment of culpability already.

Step Three firstly sets out three levels of religious / racial aggravation and the corresponding uplift, following the same pattern as is shown in the guideline for racially / religiously aggravated harassment already. The guideline warns against double counting and re-iterates the requirement for the sentencer to state that the offence was aggravated by this reason, and what the sentence would have been otherwise, in open court.

As mentioned above, the aggravation for assaulting an emergency worker is put on a similar footing in the new guideline. For a category 1A offence, the appropriate uplift as set out would be to increase the length of any custodial sentence or consider imposing custody if not already considered for the basic offence. Category A2 or B1 offences suggest an appropriate uplift of imposing a more onerous penalty of the same type, or a more severe type of sentence, whereas the appropriate uplift for offences in Category A3, B2 or B3 suggests a more onerous penalty of the same type. The guideline does make it clear that “the uplifted sentence may considerably exceed the basic offence category range”.

In summary, many of the above changes will be welcomed by the courts and advocates who use the guideline most often, although it remains to be seen what difference, if any, the new guideline will make to the length or type of any sentences imposed.

This summary has been provided by Victoria Lewis, to instruct Victoria please contact her clerk Laura Nicholson.