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If you have been charged with assault, make sure you understand the legal elements of the offence. Whether you could face jail time depends on the type of assault that you have been accused of committing, and the circumstances in which the offence took place. It also depends on the court’s perception of you and the situation surrounding your case. Ensuring you have good quality legal representation is key to giving yourself the best possible chance of a positive outcome in the prosecution against you. This article explains the different types of assault, the procedure that the police will follow when investigating your case, and the sentence that you could face if you are convicted for the first time.
Under the law of England and Wales, there are several different types of assault. It is important to understand the difference between these offences because they carry very different penalties.
|Offence name||Law||Description||Offence type|
|Common assault||Section 39 Criminal Justice Act 1988||This law sets out two separate offences of assault and battery.||Summary only.
It must be heard in the Magistrates’ Court.
|Assault||Intentionally causing a person to apprehend unlawful force||This is where you threaten or otherwise cause someone to believe that you will use force against them. This could include threatening words or a raised fist.|
|Battery or ‘assault by beating’||Intentionally causing a person to suffer unlawful force||This is where you use unlawful force against a person. This offence is usually used for less serious incidents.|
|Assault occasioning Actual Bodily Harm||Section 47 Offences Against the Person Act 1861||For this offence to be made out, there must be evidence that the assault caused bodily harm. The hurt does not need to be permanent but must be more than transient or trifling. It can include psychological harm, however there must be evidence of this.||Either way.
It can be heard in either the Magistrates’ Court or the Crown Court.
|Assault occasioning Grievous Bodily Harm||Section 20 Offences Against the Person Act 1861||This is where really serious harm has been caused in circumstances where the defendant intended or foresaw that the act could cause some harm. It can include psychiatric injury where there is evidence of this.||Either way.
It can be heard in either the Magistrates’ Court or the Crown Court.
|Wounding/grievous bodily harm with intent||Section 18 Offences Against the Person Act 1861||This is where really serious harm or wounding has been caused, in circumstances where the defendant intended to cause really serious harm.||Indictable only.
It can only be heard in the Crown Court.
As you can see, there are some overlaps between the different offences. As such, the CPS often will have to make a strategic decision in respect of which offence should be charged.
For example, when choosing between the offence of battery and ABH, the prosecutor will consider the culpability (blameworthiness) of the offender, the injuries suffered by the victim, and any other harm that was caused. They would also look for any aggravating factors in the case. The key difference is that common assault is a summary only offence, whereas ABH is an either way offence. Therefore, if an ABH offence is heard in the Crown Court, the court’s sentencing powers are much greater. Another difference is that because common assault is a summary only offence, the charge must be laid within 6 months of the alleged incident. If the charge is not laid by this time, the prosecution will be out of time and the CPS will usually have to drop the case.
Where the police receive a report of a crime, they are obliged to investigate. Depending on the circumstances, you may be arrested, or you may be asked to attend the police station for a voluntary interview. Whether you are interviewed following an arrest or voluntarily, you have the right to legal representation. If the interview is voluntary, you are not obliged to attend. You can stop the interview at any time, and you can leave the police station, if you choose to do so.
In addition to interviewing you, the police will examine the crime scene and will take forensic information from you. They will take a statement from the victim, and they will also interview any witnesses to the assault. They may obtain CCTV footage or any other relevant evidence, such as a video taken of the incident on a smartphone.
Often, it is more difficult to obtain evidence in support of allegations of assault that have taken place in the domestic setting. This is because in these cases it is more common that the only two people present were the complainant and the alleged perpetrator. In these types of cases, the police could ask neighbours to comment upon if they heard a disturbance. They will also take into account evidence of any injuries. This includes injuries visible on the victim, photographic evidence of injuries, and any records from medical providers.
For less serious cases of assault, you are likely to be released on bail pending the police’s investigation. In the domestic context, where the victim is perceived to be at risk of further offences, you may be bailed with conditions to stay at a different address and not to contact the victim. In very serious cases of assault, it is possible that you would be remanded in police custody pending the charging decision. Once all relevant lines of enquiry have been pursued, the police will make a charging decision on your case. The options are that they could take no further action, you could be offered an out of court disposal such as a caution, or you could be charged. If you are charged, you will be called to appear before the Magistrates’ Court for the first hearing in your case.
The sentence that you could face for assault varies depending on the offence for which you are convicted. This table sets out the maximum sentence and the sentence range for each type of assault.
|Type of assault||Maximum sentence||Sentence range|
|Common assault/battery||6 months imprisonment.
If the assault is against an emergency worker, 12 months’ imprisonment.
If the assault is religiously or racially aggravated, the maximum sentence is 2 years imprisonment.
|Discharge – 6 months custody.|
|Assault occasioning Actual Bodily Harm||5 years imprisonment (6 months if the case is heard in the Magistrates’ Court).
If the assault is religiously or racially aggravated, the maximum sentence is 7 years imprisonment.
|Fine – 4 years custody.|
|Assault occasioning Grievous Bodily Harm Section 20||5 years imprisonment (6 months if the case is heard in the Magistrates’ Court).
If the assault is religiously or racially aggravated, 7 years imprisonment.
|Community order – 4 years 6 months custody.|
|Grievous Bodily Harm/Wounding with intent
In order to arrive at the starting point for your sentence, the court will assess your culpability and the harm caused to the victim. Factors that increase culpability involve the use of a weapon, or if an especially vulnerable victim was targeted. If the offence was committed under the influence of alcohol or drugs, or if the assault involved an abuse of power, or took advantage of a position of trust, this will also increase its seriousness. An assault will be considered less serious if it was just a single blow and/or if it was an isolated incident.
The court will also consider aggravating and mitigating factors relevant to the personal circumstances of the defendant. If you show remorse, are of previous good character, or have a serious medical condition, these will usually be considered to be mitigating factors. If you suffer from mental illness, or you lack maturity, these may also be mitigating factors. The court will also take into account whether you are the sole or primary carer for dependent relatives. For more information, see the Sentencing Council’s guide here.
Whether you will face a custodial sentence depends on the type of assault you have committed. If you are convicted of common assault, and it is a first-time offence without any aggravating factors, it is likely that you could receive a discharge or a community order rather than a custodial sentence. However, this does depend on the circumstances of your case.
Your criminal defence solicitor can help you prepare a plea in mitigation. This is a document that explains to the court why your sentence should be lower than the sentence starting point.
If you have been accused of assault, think carefully about which firm of criminal defence solicitors you instruct. The right solicitor could even help you get your case dropped before the trial. At Stuart Miller Solicitors, we help our clients navigate the complexities of the criminal justice system. No case is too big or too small for us. Contact us for a no obligation consultation today.