Following a consultation process, on 27 May 2021 the Sentencing Council published revised sentencing guidelines for assault offences. The six sets of revised guidelines came into effect on 1 July 2021 and apply to: (i) common assault; (ii) assault with intent to resist arrest; (iii) assault occasioning actual bodily harm; (iv) inflicting grievous bodily harm/unlawful wounding; (v) causing grievous bodily harm with intent to do grievous bodily harm/wounding with intent to do grievous bodily harm; and (vi) attempted murder.
The revised guidelines, which apply to adult offenders only, were revised in order to better reflect the “stepped approach” introduced in other recent Sentencing Council guidelines. This approach is designed to improve consistency in sentencing and to help the courts make a balanced assessment of the seriousness of the offending and impose a proportionate sentence accordingly. The increasingly tough approach evident in these adult guidelines demonstrates that it is all the more important that advocates and Youth Offending Teams reject reference to these guidelines in cases concerning children and highlight the Overarching Principles child-specific sentencing guideline as the primary guideline.
In a reflection of the “stepped approach” to sentencing, the revised guidelines introduce a greater number of offence categories and sentencing starting points. The aim of this increase is to ensure an appropriate assessment of an offender’s culpability and the harm caused by the offence, resulting in a proportionate sentence that reflects the seriousness of the offending.
The revisions include:
- New guidance to reflect changes in legislation regarding the sentencing of aggravated offences of common assault against emergency workers. This is aligned with the “uplifts” used for other aggravated offences, such as those which have a racially or religiously aggravated component;
- A high culpability factor of “intention to cause fear of serious harm, including disease transmission” in the common assault guideline has been introduced accompanied by a new aggravating factor of “deliberate spitting or coughing” in the guidelines for common assault and ABH;
- Revisions to the high culpability factor of “victim obviously vulnerable due to age, personal characteristics or circumstances” across all guidelines except for attempted murder;
- Introduction of a new high culpability factor of strangulation to include asphyxiation and suffocation in all guidelines except attempted murder; and
- Increases in sentences for common assault offences and revised guidelines for attempted murder, with a new sentence range up to 40 years to make sure sentences reflect the gravity of the offences.
Several of the revisions reflect either legislative initiatives, changes in the way society perceives certain types of assault or increased societal focus on the manner of the assault or the type of victim.
By way of example, the guideline for assault against emergency workers is entirely new, though its inclusion is unsurprising in light of the COVID-19 pandemic and the widespread reports of assaults on emergency workers which have dominated the press in recent years. The elements of this offence are the same as for common assault, but with a higher maximum sentence of up to 12 months imprisonment. Emergency workers includes police officers, NHS workers, those working for the fire service, prison service and custody officers.
During the consultation period, a number of responses referred to the increasing number of assaults against retail staff who sought to enforce COVID-19 safety measures. The existing aggravating factor of “offence committed against those working in the public sector or providing a service to the public” was considered to be sufficient to address these concerns and has been retained accordingly. However, there has also been an extension of the aggravating factor to include offences against a person coming to the assistance of an emergency worker.
A second example would be the introduction of the high culpability factor of strangulation (including asphyxiation and suffocation) in all guidelines except attempted murder, to reflect a greater understanding of, and focus on, the use of strangulation in cases of domestic abuse and other circumstances where the victim is a female being assaulted by a physically superior male. The consultation responses highlighted that strangulation is often used to exert power and control with an intention to cause a high degree of fear and distress in the victim, which increases the seriousness of the assault. The Sentencing Council therefore considered its inclusion as a specific culpability factor to be appropriate.
Although the revised sentencing guidelines apply to adults only, we may expect that some of the common themes will find their way into the approach to sentencing young adults and children in due course. In particular, the seriousness with which offences against emergency workers are regarded is likely to carry across into youth sentencing, as are the new culpability factors around “deliberate spitting or coughing” which have taken on such importance during the COVID-19 pandemic.
Overall, the guidelines track the public perception that “tougher” (i.e. longer/more severe) sentences are required. In particular, the consultation noted that the lowest level of sentence for common assault could be a lesser fine than that levied for a strict liability offence, such a failure to pay for a TV licence. Respondents to the consultation considered that this did not reflect the harm to the victim that would be sustained even with a relatively minor assault.
Given this wider context it is all the more important that practitioners remind sentencing Courts that these new guidelines relate to adult offenders. The new aggravating features assume a level of maturity from the defendant which many children in the criminal justice system do not possess. Where these factors are raised in relation to children’s culpability it is the responsibility of the defence advocate and Youth Offending Service to highlight the child’s developmental state and limited maturity. The key guideline to follow in the case of children remains the Sentencing Council’s “Sentencing Children and Young People, Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery Definitive Guideline.”
Alison Morris, Associate, Paul Hastings (Europe) LLP