News & Insights
Vanessa Reid discusses the significant changes soon to be implemented by the revised guidelines for assault offences.
On 27th May 2021, the Sentencing Council (“the Council”) published a revised set of sentencing guidelines for assault offences ranging from common assault to attempted murder. These new guidelines come into effect on 1st July 2021, replacing the existing 2011 guidelines. The Council also published a consultation response document (“the Consultation”) setting out the Council’s reasons for making the changes and key responses received to draft guidelines published in April 2020.
Among the significant changes are new factors related to disease transmission, strangulation, and vulnerable victims, new guidance for sentencing assaults on emergency workers, and substantial changes to the models of culpability and harm for attempted murder leading to higher starting points for the most serious categories of the offence. The new guidelines also introduce a greater number of offence categories and sentence starting points across all guidelines.
Disease transmission – spitting, coughing & biting
Assaults involving coughing and spitting have been a particular concern during the Covid-19 pandemic due to the heightened potential for disease transmission. The revised common assault guideline addresses this issue by adding a new high-culpability factor of “intention to cause fear of serious harm, including disease transmission” at step one. A new aggravating factor of “deliberate spitting or coughing (where not taken into account at step one)” has been added at step two of both the common assault and ABH guidelines.
The Council explains that “the intention of the two factors is that any activity, including but not limited to spitting or coughing, with an inference or threat of disease transmission would be captured at step one, whereas any spitting or coughing at a victim without an inference or threat would be captured at step two.” (Consultation at 17). The Council emphasises that only deliberate spitting and coughing should be considered aggravating. This was in part due to concerns that these new factors “would lead to higher sentences for the many poor, ill and homeless clients convicted of these offences [as] many are in bad health and cough intermittently anyway.” (Consultation at 22).
The draft guideline for common assault did not address biting, as the Council believed that the high-culpability factor “use of substantial force” would adequately capture forceful incidents of biting. (Consultation at 23). In response to consultation and further research, biting has now been added as an aggravating factor at step two.
Strangulation, suffocation & asphyxiation
A new high culpability factor of “strangulation/suffocation/asphyxiation” has been added across all guidelines with the exception of attempted murder. The Council notes that strangulation is an issue “gathering focus across the criminal justice system, and since the draft guidelines were published the Government has legislated specifically for strangulation offences in the Domestic Abuse Act 2021.” (Consultation at 11).
Victim obviously vulnerable due to age, personal characteristics or circumstances
A new high culpability factor of “victim obviously vulnerable due to age, personal characteristics or circumstances” has been added across all guidelines. This differs from the draft factor of “targeting of vulnerable victim, where victim vulnerable by personal characteristics or circumstances.” The Council ultimately agreed with respondents who submitted that it was the vulnerability of the victim rather than the targeting that increased culpability, and amended the factor accordingly. (Consultation at 17).
A high culpability factor of “prolonged/persistent” assault has now been included for all offences except attempted murder. This factor replaces “sustained or repeated” in the existing guidelines and has been slightly rephrased from the original proposed factor of “prolonged assault.” (Consultation at 9).
The lesser culpability factor “a greater degree of provocation than normally expected” has been removed from the culpability assessment across all guidelines. In its stead, “significant degree of provocation” has been added as a mitigating factor at step two across all guidelines other than assault with intent to resist arrest.
The Council’s new guidance on sentencing assaults on emergency workers varies considerably from the approach taken in the draft guideline. Rather than issuing a stand-alone guideline, the Council has provided for an uplift in the revised common assault guideline for assaults on emergency workers.
As practitioners will be aware, the Assaults on Emergency Workers (Offences) Act 2018 provides for a maximum sentence of 12 months’ imprisonment for a common assault where the victim is an emergency worker whereas common assault is a summary-only offence with a maximum sentence of six months’ imprisonment.
There was previously no formal guidance for sentencing assaults on emergency workers. In R v McGarrick  EWCA Crim 530 the Court of Appeal expressed the view that there were no existing guidelines which could be referred to by analogy in sentencing assaults on emergency workers given the clear legislative intent that such assaults should be sentenced more severely than they had been previously.
The Council therefore developed a stand-alone draft guideline for assaults on emergency workers. This draft guideline included custodial starting points in the highest three categories of seriousness with a starting point of eight months’ custody for the highest category of the offence.
A number of respondents raised concerns about the severity of the proposed sentences and whether they were genuinely proportionate to the offence seriousness. Others questioned the fairness of standard common assault sentences in comparison. (Consultation at 25-26).
For example, under the common assault guideline the most serious category of common assault on a domestic partner has a starting point of a high-level community order. Under the draft guideline, an identical assault on a police officer in uniform would have a starting point of an eight-month sentence of imprisonment. As respondents pointed out, this is greater than even the statutory maximum in cases where the victim is not a member of the emergency services. The Sentencing Academy also noted that the proposed guideline range itself was problematic as it spanned the statutory range, an anomaly in the Council’s Guidelines (Consultation at 26).
Several respondents suggested that instead of a separate guideline with such starkly different starting points, an uplift to the common assault guideline in respect of an emergency worker should be applied. This is the approach already taken for sentencing racially or religiously aggravated common assault offences.
This is the approach the Council has adopted: Step 3 of the revised common assault guideline now provides guidance on the uplift to be applied in aggravated cases, including assaults on emergency workers.
Assault with Intent to Resist Arrest
Assault with intent to resist arrest is a separate offence with its own revised guideline, although the Council recognises that the most likely victims of this offence are police officers acting in the course of their duty. (Consultation at 29). In the draft guideline, sentencing levels for this offence were increased considerably from the existing guideline in order to achieve relative parity with the proposed sentences for assaults on emergency workers. The Council has retained these increased sentencing levels in spite of the revised approach to sentencing assault on emergency workers.
The existing GBH guidelines include the same culpability and harm factors for offences under section 18 (wounding with intent to cause grievous bodily harm) and section 20 (inflicting grievous bodily harm/unlawful wounding). The Council determined that differing approaches should be taken to the two offences to reflect the differing intentions of the offender in committing the respective offences. As a result, the revised s20 factors are the same as for the revised ABH guideline, while the revised s18 guideline includes factors from the attempted murder guideline, given the potential for alternative charging between the offences.
The cross-cutting factors noted above relating to strangulation, vulnerable victims, prolonged/persistent assault, and provocation apply to all three guidelines, as does a new approach to weapons and weapon equivalents.
Weapons or weapon equivalents
The existing ABH and s18/s20 GBH guidelines include a single high-culpability factor of “use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal).” The new guidelines for all three offences draw a distinction between “highly dangerous weapons or weapon equivalents,” which are considered high culpability, and all other weapons, which are treated as medium culpability.
ABH and s20 GBH – impulsive/spontaneous and short-lived assault
The new ABH guideline and s20 GBH guideline include a lesser culpability factor of “impulsive/spontaneous and short-lived assault.” The Council originally proposed the removal of “lack of premeditation” as a lower culpability factor across all guidelines whilst retaining “significant degree of premeditation” as a higher culpability factor. It was felt that offences involving a lack of planning could be as serious as planned attacks, particularly in the domestic context.
Various respondents criticised the removal of this factor, noting in particular that it could disproportionately disadvantage young people, as they are more likely to act on impulse and without considering the consequences of their actions. (Consultation at 10). The Council was ultimately persuaded that if planning is an aggravating factor then a lack of premeditation should be included for a fair balancing of factors.
The ABH and s20 GBH guidelines therefore include a lesser culpability factor of “impulsive/spontaneous and short-lived assault.” This factor has not been included in the common assault guideline, as it was felt that this would capture too high a proportion of domestic violence incidents, and has not been included in the s18 GBH or attempted murder guidelines as those offences are more serious and other lesser culpability factors included for those offences were considered sufficient. (Consultation at 10-11).
s18 GBH – revenge, abused offenders, and revised harm categories
Two additional factors relating to culpability have been added to the revised s18 GBH guideline. “Revenge” has been added as a high culpability factor. “Offender acted in response to prolonged or extreme violence or abuse by the victim” has been added at lesser culpability. The latter is intended to capture cases where lack of control manslaughter would have been the appropriate verdict if death rather than GBH was caused. (Consultation at 36).
The s18 GBH harm factors have been revised to bring them more into line with the new harm factors in the attempted murder guideline, discussed below.
The changes to the guideline for attempted murder will be less welcome for those concerned about severity of sentences. The Council has in large part retained the approach to attempted murder proposed in the draft guideline and has not made significant changes in response to consultation responses. Overall the new guideline revises the models for both culpability and harm and increases the starting points for the most serious categories of the offence.
The revised attempted murder guideline includes four culpability categories which reflect Schedule 21 offences for murder as well as other factors the Council considered relevant. These include a high culpability factor increasing seriousness where a knife was taken to the scene and very high culpability factors of abduction of the victim with intent to murder, attempted murder of a child, and offence racially or religiously aggravated or aggravated by sexual orientation, disability or transgender identity.
The new guideline also removes the lesser culpability factor of “no weapon used.” It was noted that there was a risk that offences involving suffocation or strangulation would otherwise be considered as lesser culpability in inappropriate circumstances. (Consultation at 38).
The revised guideline adds a new factor indicating lesser culpability where a defendant has “acted in response to prolonged or extreme violence or abuse by the victim” and providing mitigation where there is a “history of significant violence or abuse towards the offender by the victim.” There is also a lesser culpability factor recognising the rare cases in which there was a genuine belief that the offence was an act of mercy.
The revised guideline provides more detailed and specific factors for Category 1 harm, namely: “injury results in physical or psychological harm resulting in lifelong dependency on third party care or medical treatment” and “offence results in a permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim’s ability to carry out their normal day to day activities or on their ability to work.” Category 2 harm includes “serious physical or psychological harm not in category 1” and Category 3 harm captures all other cases. This is a shift away from the broad harm categories of the existing guideline, which are “serious and long term physical or psychological harm,” “some physical or psychological harm,” and “little or no physical or psychological harm.”
Sentencing starting points for the highest categories of attempted murder have increased, although the Council notes that this is in part due to the changes made to the models for harm and culpability. (Consultation at 39). The starting points for the three highest categories of the offence are now 35 years’ (A1), 30 years’ (A2 or B1), and 25 years’ custody (A3, B2 or C1).
Many respondents were concerned that the new starting points were too high and would lead to an overall increase in sentencing lengths. (Consultation at 40). The CBA submitted that the increase in attempted murder sentences to at or near the level of murder sentences would undermine the latter. (Consultation at 40).
In defending the decision to retain the new starting points, the Council notes that the guideline does not (quite) increase sentences to the level of murder sentences, which attract mandatory life sentences. The Council also notes that the culpability required for attempted murder is of the highest level, even higher than that required for offences of murder. (Consultation at 40).
The Sentencing Academy submitted that the new starting points appeared to create a troubling disparity between attempted murder sentences and s18 GBH sentences, as the starting point for the highest category of a s18 offence will now be 12 years’ custody while the starting point for the highest category of attempted murder will now be 35 years’ custody. As the Sentencing Academy notes, “whilst an intention to kill is clearly more serious than an intention to cause serious injury, it is difficult to see that it merits a starting point almost three times the length in cases where the harm caused is identical.” (Consultation at 40). The Council considered that the comparison was flawed, as the culpability factors in the two guidelines are not identical.
The severity of these increased starting points will be felt even more heavily by defendants in light of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020. This Order applies to offenders convicted of certain violent or sexual offences and sentenced to a fixed term custodial sentence of at least 7 years on or after 1st April 2020. These offenders were previously entitled to be released after serving half of their sentence but now must serve two-thirds of their custodial sentence before release.
The revised assault guidelines usher in a wide range of changes to assault offences ranging from the most minor common assaults to the most serious offences short of murder. The Council has provided thoughtful analysis of significant responses to consultation on proposed draft guidelines and in many instances made sensible revisions where they were warranted. This demonstrates the value of these consultation exercises and the importance of soliciting feedback from stakeholders in all areas of the criminal justice system.
Vanessa Reid is a junior tenant at Carmelite Chambers. She has been instructed in a wide range of serious and violent assault cases in the Youth Court, Magistrates’ Court, and Crown Court.
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