Whither Section 89(1) of the Police Act 1996?

Section 89(1) of the Police Act 1996

Under this provision, a defendant commits a summary offence, ¹¹ where they assault a police officer who was acting in the execution of their duty at the material time. The maximum penalty for the offence is six months’ imprisonment, ¹² a fine not exceeding level 5 on the standard scale, ¹³ or both. Although it is therefore a more serious offence than those to be found in s. 89(2) of the 1996 Act, that is, resisting or wilfully obstructing a police officer in the execution of their duty, where the maximum penalties are one month in prison, ¹⁴ or a fine not exceeding level 3 on the standard scale, ¹⁵ or both, s. 89(1) is nevertheless aimed at relatively minor assaults on police officers. More serious assaults on officers can be charged under other enactments, in particular the Offences against the Person Act 1861. ¹⁶

Over the years, a number of appeals have been heard in respect of the s. 89(1) offence and its statutory predecessors. ¹⁷ Their focus has not been on the question whether a police officer has been assaulted since this is a widely recognised and well-understood concept in English criminal law. ¹⁸ Rather, it has centred on the second ingredient of the offence which is common to all three s. 89 offences; whether the officer was acting within the execution of their duty at the relevant time . ¹⁹ In the absence of a statutory definition of ‘in the execution of their duty’ in either the 1996 Act or other enactments past or present, the courts have generally been reluctant to define what the phrase means, ²⁰ preferring instead to concentrate on the facts of the appeal before them in order to decide which side of the line the officer’s conduct fell. ²¹ However, in the leading case on the ‘wilfully obstruct’ offence, Rice v Connolly, ²² Lord Parker did observe that:

…it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those and they would further include the duty to detect crime and bring an offender to justice. ²³

Given that pushing, punching, kicking, headbutting or spitting ³² at a police officer will amount to a common assault at the very least, charging a defendant with the s. 89(1) offence places the prosecution under the additional burden of establishing that the officer was acting in the execution of their duty at the material time. ³³ On at least two occasions, appeal court judges have expressed some concern that appellants have been entitled to have their convictions quashed where the second element of the s. 89(1) offence had not been established. Thus in Bentley v Brudzinski, ³⁴ where an officer was held to have unlawfully detained a person so that a colleague could continue speaking to them, Donaldson LJ (as he then was) remarked:

I hope that the police prosecutors will consider making an alternative charge of common assault when they have reason to think that there may be a technical challenge to the officer’s authority and when the reaction of the citizen has been wholly unjustifiable. This will enable the limits of an officer’s authority to be defined, whilst at the same time doing justice and giving the police officers the support which they are entitled to expect. ³⁵

Assaulting an Emergency Worker

Section 1 of the 2018 Act builds upon the existing offences of common assault and battery in that it makes them more serious crimes where the victim is an ‘emergency worker acting in the exercise of functions as such’. Thus the s. 1 offence is triable either way rather than being summary only, and the maximum penalty for either a summary offence or a conviction on indictment is 12 months’ imprisonment, a fine or both. ³⁹ It is worth noting that during the parliamentary debates, several MPs expressed some surprise at what they believed to be a unique position; the courts having the same sentencing powers in respect of the summary and indictable offence. ⁴⁰ In fact, this is presently not the case due to the operation of s. 1(4) of the 2018 Act which provides that the reference in s. 1(2)(a) to ‘12 months’ should be read as ‘6 months’ pending the coming into force of s. 154(1) of the Criminal Justice Act 2003. ⁴¹ In other words, magistrates will be able to impose a 12 months’ sentence for a s. 1 offence only once their sentencing powers have been subject to the general increase provided for under s. 154(1). The 2018 Act therefore does not achieve in the present context what the 2003 Act has yet to achieve in the wider context of sentencing for summary offences.

Although the 2018 Act provides an extensive definition of what is meant by ‘emergency worker’, ⁴² it says nothing about the meaning of ‘in the exercise of functions as such a worker’. It does state, however, that an emergency worker can be the victim of an assault or battery contrary to s. 1 when they are not at work but are nevertheless carrying out the functions of an emergency worker. Thus, for example, an off-duty police officer or paramedic who is assaulted while assisting a stricken individual would have the protection of the s. 1 offence. So too does the emergency worker who is acting in an unpaid capacity. ⁴³

Section 2 of the 2018 Act, which imposes a duty on a sentencing court to treat the fact that the victim of any one of a number of specified offences ⁴⁴ was an emergency worker as an aggravating factor when imposing sentence, ⁴⁵ also makes reference to the emergency worker ‘acting in the exercise of functions as such a worker’. The question which inevitably arises, therefore, is whether this phrase bears the same or a different meaning to ‘in the execution of his duty’ in s. 89(1) of the Police Act 1996.

In seeking an answer, we must first have regard to the 2018 Act itself. As noted above, it fails to define the phrase. This suggests, therefore, that other avenues ought to be pursued. However, in the long title to the 2018 Act it is stated, among other things, that it makes ‘certain offences aggravated when perpetrated against such workers in the exercise of their duty’. It might be inferred from this wording that for the purposes of the 2018 Act, the phrases ‘in the exercise of functions as such a worker’ and ‘in the exercise of their duty’ are synonymous. If this were correct, it would mean that the offences under s. 1 of the present Act and s. 89(1) of the 1996 Act are essentially the same, the only differences being that the newer offence is triable either way and that it can be punished more severely. However, such an inference would be unwise for the simple reason that although the long title forms part of an Act and as such may be turned to for the purposes of construction, several commentators ⁴⁶ are agreed that on the basis of the authorities, ⁴⁷ this may only happen in order to resolve matters of ambiguity and uncertainty. ⁴⁸ In the present case, however, the operative provisions in the main body of the 2018 Act are consistent in their use of the phrase ‘in the exercise of functions as such a worker’; it is the long title itself which creates the ambiguity by using a different phrase.

This inconsistency between the long title and the main body of the Act was identified during the Bill’s passage through Parliament. Thus Gareth Johnson MP informed the House how he had ‘winced’ at the use of the different phrases. ⁴⁹ In reply, the Bill’s sponsor explained:

One of the reasons for the difference…is the fact that the long title was drawn up before the Bill had been written; ⁵⁰ it was agreed effectively at First Reading, and has now been agreed on Second Reading. During the intervening period, a great many people made representations to me about the problem of securing convictions under the tighter definition to which the hon. Gentleman has referred. It is not necessary to change the long title, because it is the main body of the Bill that carries the weight. ⁵¹

In carrying out our task of answering the question posed, it is also appropriate to consider the factual circumstances of the s. 89(1) cases. These reveal that while there have been a number of occasions when the appeal courts have held that an officer was acting outside the execution of their duty, for example, in the absence of legal authority, when assaulted, it does not automatically follow that they were not in the exercise of a police function at the relevant time. Questioning an individual on the street, carrying out a stop and search or investigating the potential commission of a crime are all patently police functions even if an officer may exceed the scope of their authority in undertaking them and hence not be within the execution of their duty. It would seem, therefore, that ‘in the exercise of functions as such a worker’ has a wider meaning than ‘in the execution of his duty’, a point borne out by the range of persons who may be a victim of a s. 1 offence. Thus while they share the common characteristic that they are ‘emergency workers’ for the purposes of the 2018 Act, unlike the police officer, they are not subject to duties by virtue of the function they perform, the powers they possess or an oath that they have sworn on their appointment. ⁵³

The Fate of s. 89(1)

This matter was not directly debated during the parliamentary stages of the Bill. Nevertheless, at the third reading stage in the House of Commons, amendments were tabled which would have increased the maximum custodial sentence for the s. 89(1) offence (and others) ⁵⁴ had they been moved. Such attempts were resisted by the Government, not least because it was felt that while a sentencing differential between an assault on a citizen and an assault on an emergency worker was legitimate given the nature of the latter’s role, allowing the courts to impose a custodial sentence up to four times as great would be disproportionate. ⁵⁵ Had the amendments been moved and passed, the maximum sentences for s. 1 and s. 89(1) offences would potentially have been the same. As a result, the prosecuting authorities would have been presented with a choice as to which offence to charge assuming that the evidential and public interest tests were satisfied. Given the past difficulties over establishing whether an officer was acting in the execution of their duty at the relevant time for the purposes of s. 89(1), it is not difficult to presume that the new s. 1 offence would have become the preferred charging option. The same presumption also applies to how the law now actually stands with the maximum custodial penalty for the s. 1 offence being the same or greater than that for the s. 89(1) offence depending upon which court hears the prosecution. In bald terms, what is to be accomplished by charging the s. 89(1) offence rather than the s. 1 offence when the latter does not require that an officer was acting in the execution of their duty at the relevant time and when, in the event of a conviction, the sentencing powers of the court are at least as great?

Conclusion

The simple answer to the question posed in the title is that the s. 89(1) offence still exists on the statute book. Accordingly, it remains capable of being the subject of a prosecution before the magistrates. However, although the Assaults on Emergency Workers (Offences) Act 2018 has neither amended nor repealed s. 89(1), the creation of the s. 1 offence may well mean that it will supplant the older offence when prosecutors exercise their discretion in relation to assaults on police officers. Logically this seems the probable outcome when a prosecutor is faced by two offences which encompass the same conduct but when one of them is easier to establish and may result in the imposition of a more severe penalty. Support for this view can be found in remarks made on behalf of the Government by Baroness Vere at the conclusion of the Bill’s second reading debate in the House of Lords. Thus in explaining the Government’s estimate that ‘there will be approximately 15,000 prosecutions of the new offence per year’, ⁵⁶ she suggested that ‘much of it will be the displacement of existing assault offences under section 39 of the Criminal Justice Act and assault on a police constable offences under section 89 of the Police Act 1996’. ⁵⁷ If this proves to be the case, s. 89(1) will have ceased to serve a meaningful purpose and ought therefore to be repealed as a tidying up measure. That said, there is something not entirely satisfactory about the potential future repeal of a long-standing offence occurring as an afterthought. While the case for the enactment of the new s. 1 offence was so compelling as to achieve cross-party support in Parliament, and while it may represent ‘a proportionate response to a matter of public concern’, ⁵⁸ it is regrettable that the 2018 Act has failed to address its relationship with s. 89(1) of the 1996 Act, in contrast to the position in Scotland when similar legislation was passed. ⁵⁹ In the interests of clarity and legal certainty, ⁶⁰ and in recognition of the likely moribund fate of s. 89(1), it would have been appropriate for Chris Bryant’s Bill to not only make new law but also to effect a consequential repeal. Had such a provision been included there would have been no need for the present discussion. Its omission has the potential to create something of a dilemma for the prosecutor when faced with an assault on a police officer although for the reasons stated, it seems likely that before long, s. 89(1) prosecutions will become a thing of the past.