Offences against the Person, incorporating the Charging Standard
- Introduction
- Summary only offences
- Either way offences
- Indictable-only offences
- Selecting the most appropriate charge or charges
- Acceptability of pleas
Introduction
This guidance is intended to assist prosecutors by outlining key offences against the person and in particular, to assist with selecting the appropriate charge where there may be a choice. It is not an exhaustive account of all offences against the person but rather a guide to some key offences.
In some circumstances prosecutors should also consider other CPS guidance alongside this guidance, including if dealing with a fatality the Homicide guidance, if dealing with evidence of strangulation or suffocation the Strangulation and suffocation guidance, if dealing with a domestic abuse allegations the Controlling or Coercive behaviour in a Family or Intimate Relationship, Domestic Abuse and Stalking or Harassment guidance. The Child Abuse (Non-Sexual) guidance should be considered where the victim is a child.
When applying section 6 (selection of charges) of the Code for Crown Prosecutors, this guidance proposes:
- Start by determining the level of injury
- Then, take a step back and, considering all of the circumstances, select the appropriate charge.
Summary only offences
These offences carry a maximum penalty of six months’ imprisonment. The statutory time limit in section 127 Magistrates’ Court 1980 will apply: proceedings must be commenced within 6 months of the date the offence was committed. Note the exception for domestic abuse battery, below.
Battery / common assault
Section 39 Criminal Justice Act 1988 (CJA 1988)
Common assault is an act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. Battery is committed by the intentional or reckless application of unlawful force to another person. These are two separate offences, placed on a statutory footing by section 39 CJA 1988. Where battery is selected it should be charged as “assault by beating”: DPP v Taylor and Little [1992] Q.B. 645.
Where the offence amounts to domestic abuse, prosecutors should have regard to section 39A CJA 1988 which extends the usual summary time limit in certain circumstances. For further information see the Domestic Abuse prosecution guidance.
Consent is a defence to battery (see Brown, below). Reasonable punishment is a common law defence to battery in England, confined to battery by section 58 Children Act 2004. It is not a defence in Wales: Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020. Educational establishments may not give corporal punishment to children: section 548 Education Act 1996 (but may use reasonable force for specified reasons including preventing an offence: section 93 Education and Inspections Act 2006.
Assaulting a constable in the execution of their duty
Section 89 Police Act 1996
Assaulting a constable in the execution of their duty (section 89 Police Act 1996) involves a common assault or battery committed against a police officer or person assisting a police officer acting in the execution of their duty. The duties of a police officer are not defined in statute. Where the issue in the case is whether the officer was acting in the execution of their duty, but the conduct would at any rate amount to a common assault or battery, it may be prudent to add that as an alternative charge.
By virtue of section 8 Prisons Act 1952 (“every prison officer while acting as such shall have all the powers, authority, protection and privileges of a constable”) this offence applies to prison officers as well. Similar offences apply to private sector prison officers (section 90 Criminal Justice Act 1991), secure training centre custody officers (section 13 Criminal Justice and Public Order Act 1994) and immigration officers (section 22 UK Borders Act 2007).
By section 68A Sentencing Act 2020, when sentencing an assault against any person providing a public service, performing a public duty, or providing services to the public, the court must treat this as an aggravating factor at sentence and must state in open court that the offence has been aggravated.
Either way offences
The offences which are triable either in the magistrates’ court or Crown Court vary in their maximum penalty between 2 years’ imprisonment and 5 years.
Assaulting an emergency worker
Section 1 Assaults on Emergency Workers (Offences) Act 2018 – maximum 2 years’ imprisonment
Assault on emergency worker (section 1 Assaults on Emergency Workers (Offences) Act 2018) is committed when an offence of common assault or battery is committed against an emergency worker acting in the exercise of functions as such worker. An emergency worker is defined in section 3(1) Assaults on Emergency Workers (Offences) Act 2018.
Assault with intent to resist arrest
Section 38 OAPA 1861 – maximum 2 years’ imprisonment
This offence (section 38 OAPA 1861) is committed when a person assaults another person with intent to resist arrest or prevent the lawful apprehension/detention of themselves or another for any offence. This may be used for assaults on persons other than police officers, for example store detectives, who may be trying to apprehend or detain an offender.
Ill-treatment or neglect
Section 127 Mental Health Act 1983, section 44 Mental Capacity Act 2005, sections 20 to 25 Criminal Justice and Courts Act 2015 – maximum 5 years’ imprisonment
These offences address ill-treatment and neglect of victims who are receiving treatment for mental disorders, those who lack mental capacity and those being cared for who have mental capacity respectively.
Assault occasioning actual bodily harm
Section 47 OAPA 1861 – maximum 5 years’ imprisonment
This offence (section 47 OAPA 1861) is committed when a person intentionally or recklessly assaults another, thereby causing actual bodily harm (ABH). Harm need not be permanent but must be more than transient and trifling: R v Donovan;[1934] 2 KB 498. This definition was cited with approval in R v Brown [1994] 1 AC 212 which confirmed that consent may be a defence to battery but not to the infliction of any more serious harm (ABH or GBH), absent good reason for a recognised exception. Psychological injury not amounting to a recognisable psychiatric illness does not fall within the ambit of bodily harm. Psychiatric injury should be supported by medical evidence: R v D [2006] EWCA Crim 1139 and R v Chan-Fook;[1993] EWCA Crim 1.
Strangulation and suffocation
Section 75A Serious Crime Act 2015 – maximum 5 years’ imprisonment
Strangulation (section 75A Serious Crime Act 2015) is the obstruction or compression of blood vessels and/or airways by external pressure to the neck. Suffocation is the depriving of a person of air which affects their normal breathing. This definition is wider than that of strangulation which requires pressure to the neck.
Unlawful wounding/inflicting grievous bodily harm
Section 20 OAPA 1861 – maximum 5 years’ imprisonment
GBH means really serious harm. The harm does not have to be either permanent or dangerous: Golding [2014] EWCA Crim 889. Proof of wounding requires a break in the continuity of the skin. The distinction between a section 18 and section 20 GBH is the mens rea of the offence. Charge selection must address the question of recklessness and intention. It is therefore of critical importance, and good practice, to explain how the evidence in the case directly supports recklessness and intention. For a section 20 GBH the suspect must intend, or foresee, that the act might cause some harm: R v Savage; DPP v Parmenter [1992] 1 AC 699. It is not possible to attempt this offence because in order to attempt it, the consequence (wounding or GBH) must be intended, which is an offence contrary to section 18 instead. The indictment should make clear whether it is wounding or GBH which is alleged.
Making a threat to kill
Section 16 OAPA 1861 – maximum ten years’ imprisonment
This offence requires proof that the suspect intended that the victim would fear that the threat to kill would be carried out. It is therefore necessary to prove the intention of the suspect, not what the victim’s response or the effect on them was – though this may provide evidence in support of the suspect’s intention. Nor does the threat have to concern the victim: it might be a threat to kill another person. It remains important that the suspect intended the person to whom the threat was made (not who it concerned) to fear it would be carried out. Proving this intention may not be straightforward. Threats can be calculated and made with an effect on the victim in mind – or they can be made in the heat of the moment – and care is needed in assessing the evidence of intention. Some factors to consider when assessing intent include (the list is not exhaustive) the history between those involved, the suspect’s antecedent history, was a weapon involved, the demeanour of the suspect, the effect on the recipient of the threat(s) and any relevant admissions in or out of interview.
If there is sufficient evidence to charge the offence together with another offence, section 6 of the Code should be applied to decide whether the threat charge or the other charge provide the court with adequate powers of sentence, reflect the seriousness and extent of the offending and enable the case to be presented in a clear and simple way. Other communications or public order offences should be considered either where there is sufficient evidence to charge threats to kill but an alternative is necessary because intention is disputed, or where the conclusion has been reached that there is insufficient evidence to charge threats to kill but another offence might reflect the conduct.
As with sections 20, 38 and 47 OAPA 1861, this offence is triable either way, by virtue of schedule 1, paragraph 5 Magistrates’ Court Act 1980.
Indictable-only offences
The following offences triable only in the Crown Court carry a maximum sentence of life imprisonment.
Wounding/causing grievous bodily harm with intent
Section 18 OAPA 1861
The definition of GBH is as above. This offence (section 18 OAPA 1861) however can only be committed where GBH (or wounding) is intended. It bears repeating that the explanation for the charge selection should directly address the question of recklessness or intention, demonstrating how the evidence in the case supports the decision. Evidence of intention may come from different sources, of which the following are a few examples:
- selection and use of a particular weapon
- severity or duration of attack
- making prior threats or planning a serious attack
- relevant admissions in interview
If section 20 is a possible alternative verdict to section 18, it is good practice for it to appear on the indictment: Lahaye [2005] EWCA Crim 2847 (and in these circumstances, there should be clear rationale to explain why the prosecution case is that the defendant intended GBH/wounding, why a plea to section 20 is not an acceptable alternative, but that this is a trial issue for the jury to determine).
An offence contrary to section 18 may also be committed where the victim is wounded or caused grievous bodily harm in the course of the defendant resisting or preventing the lawful apprehension of any person. This offence may be used where the injuries amount to grievous bodily harm or injury but where the intention to resist or prevent a lawful apprehension is clearer than the intent to cause a wound or grievous bodily harm.
Attempted murder
Section 1(1) Criminal Attempts Act 1981
While murder can be committed where a victim is killed by a suspect who intends to kill them or cause GBH, attempted murder can only be committed where a suspect intended to kill the victim but the victim did not die (section 1(1) Criminal Attempts Act 1981).
Further OAPA 1861 offences
A number of other offences are available under this legislation. Examples of offending for which they should be considered include:
- spiking, i.e. using a drug with a view to raping someone: section 22 administering any stupefying or overpowering drug with intent to commit an indictable offence (with potential alternative offences under section 23 or 24 depending on the evidence of intention)
- potting, i.e. throwing faeces or urine at a person: section 24 administering any poison or destructive or noxious thing with intent to injure, aggrieve or annoy a person
- acid attacks i.e. throwing acid at a person to injure them: section 29 casting or throwing a corrosive fluid or destructive or explosive substance with intent to do grievous bodily harm.
Racially aggravated offences
To prove that an offence is racially or religiously aggravated, the prosecution must prove the ‘basic offence’ followed by the racial or religious aggravation as defined in section 28 Crime and Disorder Act 1998. See further the Prosecution Guidance on Homophobic, Biphobic and Transphobic Hate Crime.
Selecting the most appropriate charge or charges
The following approach process may assist prosecutors. First, determine the level of injury. Second, take a step back and, taking into account all the circumstances, select the appropriate charge.
1. Start by determining the level of injury
In the first instance it should be possible to determine whether the injury is of GBH, ABH or battery level.
This must be considered with reference to the victim, i.e. the person’s age, health or any other relevant factors. In Bollom [2003] EWCA Crim 2846 the court said ‘To use this case as an example, these injuries on a 6-foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, or someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment must be made of, amongst other things, the effect of the harm on the individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.’
Examples where the injury is most likely to amount to common assault or battery include (this is not an exhaustive list):
- grazes
- scratching
- abrasions
- minor bruising
- swelling
- reddening of the skin
- superficial cuts
Examples where the injury is most likely to amount to ABH as it is more than transient or trifling include (this not an exhaustive list):
- damaged teeth or bones
- extensive or severe bruising
- cuts requiring suturing
- loss of consciousness
Examples where the injury is most likely to amount to GBH or more include (this not an exhaustive list):
- life changing injuries
- significant or sustained medical treatment is required (for instance, intensive care or a blood transfusion) even if full or relatively full recovery follows.
In relation to GBH, prosecutors should also assess the evidence of intention to cause GBH.
A clear focus is required at this first stage on whether the relevant legal tests are made out: are the injuries more than transient or trifling? Are they really serious? For GBH, is there evidence of intention or recklessness? See above for the considerations as to intention.
As a matter of law, prosecutors must prove that the level of injury inflicted amounts to the specific offence charged. However, once the available charges have been identified the level of injury alone may not be determinative of the most appropriate charge considering the specific circumstances on a case-by-case basis.
2. Take a step back and considering all of the circumstances, select the appropriate charge
The appropriate charge should be identified by applying the principles set out in the Code for Crown Prosecutors, in particular paragraph 6.1 which states:
Prosecutors should select charges which:
- reflect the seriousness and extent of the offending
- give the court adequate powers to sentence and impose appropriate post-conviction orders;
- allow a confiscation order to be made in appropriate cases, where a suspect has benefitted from criminal conduct, and
- enable the case to be presented in a clear and simple way.
This underlines that the level of injury is not determinative and prosecutors must consider all the circumstances of the offending.
Separate guidance must be applied in cases concerning strangulation and suffocation, or assaults on emergency workers.
Prosecutors may usually begin by asking whether the court will have adequate powers to sentence if the lesser offence is charged. Where there is a choice between battery and ABH, and ABH and section 20 GBH, this will involve considering the relevant guideline. Where there is evidence of intentional GBH, it is highly likely that only that charge will provide the court with adequate powers of sentence.
However, in all cases it is necessary to consider whether the charge reflects the seriousness and extent of the offending. For instance, use of a weapon, a particularly serious way of committing an assault (e.g. kicking on the floor, headbutting), a vulnerable victim, repeated conduct, the making of threats, multiple incidents, significant pre-meditation, or a relevant past history may mean the more serious charge is appropriate. The severity of a wound is addressed in this approach: a wound requiring life-saving surgery would usually be charged contrary to section 20/18 whereas a more minor assault causing a minor cut would amount to a battery or ABH. Where a knife is used to wound, section 20/18 is almost always the appropriate charge.
The identity of the victim is important. In the case of emergency workers, there is likely to be a choice of charge between assault on an emergency worker and summary only offences. In the case of victims lacking mental capacity ill-treated by their carer etc., there is likely to be a choice of charge between the section 127, 44 or 20-25 offences above and other offences. Although outside the scope of this guidance, where the victim is a child, further offences, including those contrary to section 1 Children and Young Persons Act 1933 or section 5 Domestic Violence, Crime and Victims Act 2004, will fall to be considered.
Prosecutors should consult the separate guidance on this point in respect of emergency workers. In the case of victims lacking mental capacity ill-treated by their carer etc., this is likely to be the appropriate charge to reflect the seriousness and extent of the offending.
The CPS’ public statement as to its commitment to deal robustly with domestic abuse and with hate crime tends in favour of the selection of more serious charges here. Such charges, where there is a choice, will often be justified in order properly to reflect the seriousness of this type of offending. This includes cases where the victim has withdrawn their support for the prosecution: this does not lessen the seriousness of the offending.
The Court of Appeal has been critical of the selection of charges by the CPS in domestic abuse cases where it fails to reflect the seriousness of the offending (and indeed did not provide the court with adequate powers of sentence):
- In Moore [2015] EWCA Crim 2561 the prosecution accepted pleas to four charges of battery rather than ABH as the victim had withdrawn support for the prosecution. The court found in the circumstances of these assaults that this provided for inadequate powers of sentence and held that “this demonstrates a particular problem in relation to the charging of offences of domestic violence which should be enquired into [by the CPS] at the highest level”
- In Jex [2021] EWCA Crim 1708 the court again held that the DPP personally should consider what had gone wrong. The decision to charge battery given the seriousness of the offending was both “incomprehensible” and “quite wrong”.
Where there is evidence of intention to cause GBH, section 18 is almost always the appropriate charge to reflect the seriousness (as well as adequate powers of sentence) in contrast to section 20. See above for consideration relating to intention.
Acceptability of pleas
Prosecutors should apply section 9 of the Code for Crown Prosecutors when deciding whether to accept pleas and also have regard to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise.
The case strategy in an offence against the person case will consider the offer of pleas, if they are acceptable and set out any rationale in the review. In general, it will not normally be appropriate to accept a plea to a lesser offence unless:
- the decision to charge a more serious offence was in error, or
- there has been a material change in circumstances relevant to the acceptability of plea.
In general “lesser offence” means “has a lower maximum penalty”, but note the point above about strangulation/suffocation as a more serious offence than ABH notwithstanding they have the same maximum penalty. As to section 20 / 18 GBH / attempted murder, again unless the decision to charge the more serious offence was in error on the question of intent, or there is a material change in circumstances relevant to the defendant’s intent, a plea to the lesser offence is unlikely to be appropriate. In relation to racially or religiously aggravated offending, it is especially important that (unless exceptionally rare circumstances have arisen) a plea is not accepted to the “basic” offence if there is sufficient evidence to prove racially or religiously aggravated offence. If a decision is made to accept a plea to a lesser offence, the prosecutor must explain why they made the decision and demonstrate consideration of the impact of the decision on those involved with the case.