Abstract
Keywords
On 26 August 2019, police officers noticed the appellant looking into a car. He was searched and found to be in possession of a spanner which had been adapted so that a Stanley knife blade had been attached to the handle. The appellant was arrested for being in possession of a bladed article and taken to a police station. While in custody officers attempted to remove his tracksuit bottoms. A struggle ensued and an officer was kicked in the calf. In interview, the appellant claimed that he had not realised that he had kicked the officer and that it had not been intentional. Three days later, following his release on bail, the police answered a report of a man seen on a bike in possession of a knife. The appellant was stopped by police officers and a knife was found directly underneath his bicycle. Following his arrest, he provided an incoherent explanation for the presence of the knife and indicated that he was on drugs.
In his absence, the appellant was found guilty before the magistrates of two offences of having an offensive weapon in his possession contrary to s 1(1) of the Prevention of Crime Act 1953, and one offence of common assault on an emergency worker, contrary to s 39 of the Criminal Justice Act 1988 and s 1 of the Assaults on Emergency Workers (Offences) Act 2018. He was committed for sentence pursuant to s 3 of the Powers of Criminal Courts (Sentencing) Act 2000. In a pre-sentence report, it was stated that the appellant claimed not to be able to remember the events because he had been under the influence of Valium, crack cocaine and heroin. His remorse for the common assault was recorded, and it was suggested that it was out of character since he normally had positive interactions with the emergency services. He was assessed as posing a medium risk of reoffending and of causing serious harm. Accordingly, it was proposed that he should be subject to a 12-month community order with a six-month drug rehabilitation requirement and a 20-day rehabilitation activity requirement.
In sentencing the appellant, the recorder noted his difficult background and that he had become addicted to drugs following an accident in 2001. The offensive weapon offences were placed within Category 2A of the relevant Sentencing Guideline. The starting point was six months’ imprisonment with a sentencing range of three to 12 months. The assault on the police officer was regarded as being a serious offence. The recorder noted that emergency workers required the protection of the courts. While he had considered the possibility of a suspended sentence, he felt that the circumstances justified the imposition of an immediate custodial sentence. In particular, the second offensive weapon offence was aggravated in that it had been committed while the appellant was on bail. The recorder therefore sentenced the appellant to six months’ imprisonment for the first offensive weapon offence, three months’ imprisonment for the assault and nine months’ imprisonment for the second offensive weapon offence. Since the sentences were to run consecutively rather than concurrently, the total sentence was 18 months’ imprisonment.
The appellant appealed against his sentence on the ground that it was manifestly excessive. It was contended that the recorder had fallen into error by not correctly categorising the assault offence on an emergency worker within the Sentencing Guideline for offences of common assault. It was submitted that as a reckless assault, it had properly fallen within Category 3 with a starting point of a band A fine and a range of a discharge to a band C fine, and that despite the fact that its aggravated nature justified an uplift, this ought not to have been to a three-month custodial sentence. It was further submitted that while the sentences for the offensive weapon offences could not be criticised in isolation, the recorder had failed to have regard to the principle of totality by making them consecutive.
With regard to the offence contrary to s 1 of the 2018 Act, police officers were entitled to perform their duty without being assaulted. Sentences of immediate custody may well be appropriate even where an assault was reckless rather than intentional. Nevertheless, the sentence here had been manifestly excessive. It was therefore quashed and a one-month term of imprisonment was substituted. With an eye to totality, this was to run concurrently rather than consecutively, so that the total sentence was now 15 months’ imprisonment.
Commentary
At the time of writing, R v Whelan is only the second occasion on which the appeal courts have been required to determine whether a sentence imposed in respect of an assault on an emergency worker was wrong. Thus far, therefore, an appeal against a conviction for an offence contrary to s 1 of the Assaults on Emergency Workers (Offences) Act 2018 has yet to be heard in the higher courts.
The underlying purpose of the s 1 offence was to seek to provide protection for those who, in one way or another, protect members of the public when carrying out their functions. At the conclusion of the Bill’s second reading debate in the House of Lords, Baroness Vere, on behalf of the Government, estimated that there would be ‘approximately 15,000 prosecutions of the new offence per year’: see Hansard, HL Deb Vol.792, at col.367 (29 June 2018). While it is still too early to judge the accuracy of this prediction, the present case does confirm what the Minister thought would be the likely source of the prosecutions, that is, conduct which previously would have been prosecuted either as an assault under s 39 of the Criminal Justice Act 1988, or as an assault on a police officer in the execution of their duty contrary to s 89(1) of the Police Act 1996.
The McGarrick Decision
The other appeal to be heard to date in relation to an offence contrary to s 1 of the 2018 Act is R v McGarrick [2019] EWCA Crim 530. Like Whelan, it also involved the imposition of a total sentence for several offences, including a s 1 offence. The assault occurred while police officers attempted to arrest the applicant on suspicion of having committed a fraud offence. During a struggle, which involved the use of incapacitant spray, the applicant struck one of the officers on the side of his face causing a radio earpiece to be dislodged. The officer later suffered pain to his cheek, as well as to his upper and lower teeth and gums. The same officer also sustained some marks to his arms caused when he and the applicant fell to the ground during the struggle. Had these events occurred prior to the enactment of s 1 rather than two weeks after, the applicant may well have been charged with either assaulting or resisting a police officer in the execution of their duty contrary to s 89(1) or (2) of the Police Act 1996. In sentencing the applicant to four months’ imprisonment for the s 1 offence (and nine months’ imprisonment for the offence contrary to s 1 of the Fraud Act 2006, to run consecutively), HHJ Nawaz noted that while no serious injury had been occasioned, the victim had been in uniform and was only doing what he was duty-bound to do when assaulted.
The single ground of appeal related to the sentence for the s 1 offence which, it was argued, was far too high. In support of this submission, counsel for the applicant had directed the Court of Appeal to the Sentencing Council’s Definitive Guideline for Assault (effective as from 13 June 2011) and had argued that the s 1 offence could be treated as being comparable to either a common assault involving higher culpability or an offence under s 89(1) of the 1996 Act. The submission was rejected for five main reasons. For present purposes, however, only two will be noted. The first concerned the Court of Appeal’s view that it was inapt to rely on the Assault Sentencing Guideline for the purposes of sentencing a s 1 offence. This was because there is a disparity between the maximum sentences for a common assault or battery under s 39 of the Criminal Justice Act 1988, or an assault contrary to s 89(1) (both six months’ imprisonment), and a s 1 offence (12 months). The Court of Appeal was therefore of the view that sentencing guidelines in relation to the first two offences could not be read across and applied to the s 1 offence, even with the aid of an uplift, since ‘Parliament intended the sentencing regime for such offences to be more severe’ (per Warby J [2019] EWCA Crim 530 at [18]). Although there were also sentencing guidelines in relation to assault with intent to resist arrest, for which the maxim sentence is two years’ imprisonment, the Court of Appeal was of the view that there were ‘no existing guidelines to which resort can usefully be had by analogy’ (at [20]). Accordingly, it set about sentencing for the s 1 offence in the absence of a guideline but with Parliament’s legislative intent clearly in mind, that is, that assaults on emergency workers ought to be punished more severely than had hitherto been the case, while at the same time recognising the wider sentencing objective of seeking to arrive at a sentence which is just and proportionate to the offending.
The second reason for rejecting the appeal in McGarrick related to the first in that while the Court of Appeal eschewed following inapt sentencing guidelines, it did consider it ‘helpful to adopt the decision-making structure that characterises Sentencing Council’s Guidelines’ (at [23]). In other words, therefore, it followed a Guideline approach to sentencing for the s 1 offence in the absence of an actual Guideline. Having regard to the harm caused by the offence as well as to the applicant’s culpability, which was assessed as being at the higher end due to the deliberate, determined and premeditated nature of the offence, the Court of Appeal concluded that in the absence of mitigating factors and in the presence of aggravating factors, such as the applicant’s 33 previous court appearances, the sentence for the s 1 offence had not been manifestly excessive.
Applying the McGarrick Approach
In Whelan, the Court of Appeal was grateful to counsel for the appellant for having drawn its attention to McGarrick. It endorsed what had been said in that case about the rationale underpinning the s 1 offence, and also followed the approach to sentencing which that court had adopted. In its judgment, ‘sentences of immediate custody may well be appropriate in such cases even for a reckless rather than an intentional assault’ ([2020] EWCA Crim 195 at [15]). The facts of Whelan were, however, different to those in McGarrick. The appellant’s culpability had not been so high, and there was a lack of premeditation. The Court of Appeal did note, however, that the officer had been kicked with a shod foot. In the light of these differences, it was therefore willing to accept that the four-month sentence had been manifestly excessive, hence its reduction to one month.
Conclusion
It will be recalled that the s 1 offence was a direct legislative response to a significant increase in the number of assaults on emergency workers. Thus, for example, Home Office figures for 2016–2017 showed that there were 24,000 assaults on police officers in England and Wales: see Hansard, HC Deb Vol.629, at col.1104 (20 October 2017). It will also be recalled that the new offence attracted a significant level of cross-party support in Parliament given that it creates the potential for tougher sentences to be imposed in respect of such behaviour. That said, the maximum sentence of one year in prison will of course be reserved for the most serious cases, where the harm suffered by an emergency worker is significant, where the culpability of the defendant is high and where the aggravating factors comfortably outweigh any mitigating factors. From a sentencing perspective, the more difficult cases are those which fall some way below this level of offending. Since the offending in both Whelan and McGarrick was not especially serious, sentences far below the statutory maximum were justified. It is significant, however, that in both instances the custody threshold was held to have been surpassed by all the courts concerned.
If Baroness Vere’s prediction as to the number of annual prosecutions for the s 1 offence proves to be correct, it may not be too long before the Sentencing Council is asked to formulate a specific sentencing Guideline now that the Court of Appeal has made it clear on two separate occasions that it does not intend to achieve the same result by informally adapting sentencing Guideline’s relating to similar offences. This is not the first occasion on which the Court of Appeal has taken this stance. Thus, in the different context of sentencing a water company for the commission of a pollution offence contrary to the Environmental Permitting (England and Wales) Regulations 2016, SI No.1154, and in response to an invitation to add a table to the Environmental Offences Sentencing Guideline (effective as from 1 July 2014) to be used where the defendant is a very large organisation, it was stated that ‘it is not for this court to engage in ad hoc drafting of sentencing guidelines’ (per William Davis J in R v Thames Water Utilities Ltd [2019] EWCA Crim 1344, at [31]). Furthermore, in the same case, the Court of Appeal also declined a ‘more modest suggestion’: that it might express the view to the Sentencing Council that such a table was needed.
While it is both understandable and appropriate that the Court of Appeal has reacted thus, it is noteworthy that in sentencing for the offence of assaulting an emergency worker, it has been much influenced by the decision-making structure set down in the Sentencing Council’s Guidelines. Unless or until a formal Guideline is produced, such an approach will help to ensure that sentences imposed for s 1 offences are fair, proportionate and consistent. It seems likely, therefore, that the lower courts will be referred to McGarrick and Whelan in the weeks and months to come, especially now that the coronavirus pandemic has seen the prosecution and conviction of defendants for s 1 offences where the assaults in question have included deliberately coughing or spitting in the faces of police officers or NHS staff: see, for example, https://metro.co.uk/2020/04/10/coronavirus-patient-jailed-year-coughing-faces-two-nurses-treating-12538767/ (accessed 14 April 2020).