Sentencing Council issues new guidelines for assault offences

English law has a range of "assault offences" which, in a general ascending order of seriousness are:  

• common assault and battery - (common law offences but Criminal Justice Act 1988 s.39 applies)
• assault occasioning actual bodily harm - (Offences Against the Person Act 1861 s.47)
• unlawful and malicious wounding or infliction of grievous bodily harm - (Offences Against the Person Act 1861 s.20)
• unlawful and malicious wounding or causing of grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist lawful apprehension of detainer of any person - (Offences Against the Person Act 1861 s.18).

In addition to the above there are aggravated versions of common assault and the offences under sections 47 and 20 of the 1861 Act - see (Crime and Disorder Act 1998 s.29 and also section 28 for the meaning of racial or religious aggravation).  Other offences are assault with intent to resist arrest (Offences Against the Person Act 1861 s.38) and Assault on Constables (Police Act 1996 s.89).

Sentencing - The Sentencing Council (which came into being on 6th April 2010) has issued new guidelines for sentencing assault offences.  From 13th June 2011 these will replace existing guidelines but they will apply irrespective of the date of the offence.  The guidelines apply to both Crown Court and to Magistrates' Courts but a separate guideline document has been issued for each court.  The new guidelines apply only to offenders aged 18 and over. 

The new guidelines result from a consultation carried out between 13th October 2010 and 5th January 2011 and the Sentencing Council has taken a fresh approach.  The Council went back to first principles with a view to promoting greater consistency and increasing public confidence in sentencing.  Under the older guidance, the sentencing starting point was based on the "first time offender" who had been found guilty after trial.  This approach has been abandoned for these offences and the new guidance applies the Starting Point and Category ranges to all offenders in all cases irrespective of plea of previous convictions.

An example - Magistrates Courts guideline for Common Assault

Magistrates' Court guideline  stipulates 9 steps to be followed:

1.  Determine the offence category:

Category 1	Greater harm (injury or fear of injury must normally be present) and higher culpability
Category 2	Greater harm (injury or fear of injury must normally be present) and lower culpability;or lesser harm and higher culpability
Category 3	Lesser harm and lower culpability

 In making this decision, the Magistrates have to consider ONLY the table in the guidance which shows the principal factual elements and should determine the category.  The factual elements listed are those pointing to greater (or lesser) harm and those indicating greater (or lesser) culpability.  For instance, greater harm is indicated where a victim was "vulnerable"  -  Higher culpability is indicated where a weapon was used etc.

2.  Starting Point and Category Range

Depending on the Category, there will be a Starting point for sentence and a range:

Offence Category	Starting Point (Applicable to all offenders)	Category Range (Applicable to all offenders)
Category 1	High level community order	Low level community order – 26 weeks’ custody
Category 2	Medium level community order	Band A fine – High level community order
Category 3	Band A fine	Discharge – Band C fine

 A further table sets out a non-exhaustive list of factors which increase seriousness (e.g. previous conviction or offence committed when on bail etc.) or reduce seriousness (e.g. single blow or remorse etc).


3.  Other factors indicating a reduction - Consider any other factors which indicate a reduction, such as assistance to the prosecution.  The guidance refers to any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.  (See CPS).  The use of the words "such as" indicate that Step 3 is not confined only to assistance to the prosecution.

4.  Consider reduction for Guilty Plea - a separate guilty plea guideline applies - here.

5.  Dangerousness - where offences are "specified offences" under Criminal Justice Act 2003 Chapter 5.

6.  Totality principle - applies when the court is sentencing the offender for more than one offence - the total sentence must be just and proportionate to the offending behaviour.

7.  Compensation and Ancillary Orders - Magistrates Courts may, at least in straightforward cases, award compensation and certain other orders are possible.

8.  Reasons - there is a legal requirement (Criminal Justice Act 2003 s174) to give reasons for, and to explain the effect of, the sentence.

9.  Time on remand - sentencers should take into consideration any remand time served in relation to the final sentence.  The court should consider whether to give credit for time spent on remand in custody or on bail (with "qualifying curfew" or "electronic monitoring" conditions) - see, respectively, Criminal Justice Act 2003 ss. 240 and 240A.

Only those offenders coming within Category 1 will be likely to be imprisoned and even then the starting point is a high level community penalty.  (The "category range" is low level community penalty to 26 weeks custody).  An example of a high level community penalty is 150 to 300 hours unpaid work.  Even if the court is minded to impose imprisonment, they would have to consider whether there were grounds to impose a suspended sentence order.   It is a moot point whether victims, having faced the difficulties and stress inherent in a prosecution, are likely to find this satisfactory.  If they do not, public confidence in sentencing will be decreased.