Thursday, 17 March 2011

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.


  1. Thanks for the info. Baseball bat being polished as we speak. If the law won't defend me I'll do it myself. After all, what's the worst that can to happen to me if I hit back ?

    Someone either didn't think this through ...or they did very carefully and decided civil war would be the cheaper option.

  2. Space considerations caused me to just write about the Magistrates' Court common assault guidance. Naturally, the "anti" increases for the other (more serious) offences !!

  3. In 1993 the Law Commission looked at reforming the law relating to Non-fatal offences against the person - their report is essential reading for those serious about criminal law.

  4. I suspect that the effect of the new guideline for common assault will be to reduce somewhat the likelihood of imprisonment for those convicted of low level violence.

    There is much less opportunity to take previous convictions into account when arriving at a sentence since movement from one category level to another is restricted. At present I would say it is relatively easy for sentences to pass the custody threshold when considering repeat offending, and this will now be harder. Probably a good thing. In legislation we have gone from 'must not consider previous convictions' to 'may consider' to 'must consider', so perhaps this is a useful re-adjustment of the pendulum.

    A lot will depend on charging practice - there is a common belief that cps tends to charge common assault where the degree of injury would suggest ABH, on the basis that it will be easier to get either a guilty plea or cheaper to convict in the mags court.

  5. @ ASouthernJP - good points. Re Charging Practice - I suppose that if common assault is charged but the facts of the offence would justify s.47 then the offence would at least be Category 1 in Common assault. However, I am not completely sure it would work out that way in practice.

    "Previous convictions" only come into play in Step 2. However, as I am sure you have noticed, there is an interesting bit of wording in Step 2:-

    "The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range."

    Hence, so long as the court can give sound reasons for doing so, it appears that it may be possible to move upwards (e.g. Cat 2 to 1) as part of Step 2.

    The new guideline is the first by the new Sentencing Council and works differently to the existing guidance based on first time offender convicted after trial. I understand that they plan to issue furtehr guidelines on the same basis as this new assault guidance.

    It all seems very in line with Kenneth Clarke's views about short-term imprisonment. I am concerned that the victim has not been adequately considered in all of this. It is very hard and needs a lot of courage to pursue an assault prosecution. The lower the likely sentence the less likely it is that victims will see point in staying the course.

  6. IT may seem to be in line with KC but this is in fact a law passed by the last govt and a Sentencing Council appointed by them. It has to be remembered that this is a substitute for a Sentencing Grid which was what had been suggested by the Carter Report. Evidence given to the Justice Ctte - who have a statutory right to comment on these guidelines - suggest that there are doubts about the approach being taken. It is very clear from Leveson LJ's evidence and from the minutes of the SC that this is all being undertaken with the Crown Court judiciary in mind and the magistrates are expected to fit in. It seems a pity when most magistrates have got used to the format introduced in August 2008 to start all over again.

  7. i have been charged with assault to injury and i have to appear in front of the court on the 26th of this month. i was wondering if someone could tell me what the maximum sentence is if one at all?

  8. Anonymous - you will find the answer to your question in the Professional Consultation document - link in the post above. The maximum will depend on the precise charge. Beyond that, this blog does not offer legal advice of any type.

  9. ok thanks alot ;)

  10. This doesn't fill me with any confidence at all,The man who attacked me the other week is in court soon for assault and battery , didn't even know the bloke and since he threatened to kill me I was kind of hoping he would get more than a slap on the wrist, so I am scared for life because he split my eye open, have to take time off work, and he gets what??