Offences of Violence
The law governing the prosecution of offences of violence is as complex and twisted as other areas of the law. There is no statutory definition of what actually amounts to an assault and battery. The more serious offences of s.47, s.20, and s.18 wounding offences are contained in legislation passed in 1861. The language and terminology used is over 150 years old.
The disparity on sentence is ill thought out. Common assault punishable with 6 months imprisonment, s.47 punished by 5 years, the difference between the assaults can be slight but the sentence far greater if charged with the s.47. The s.20 assault is determined as a far greater charge yet the same sentence can be imposed in court 5 years imprisonment. The only difference we could argue between a s18 and s20 wounding allegation is the alleged intent, but the sentencing powers of the court jumps from 5 years to life imprisonment.
The basics definitions of the offences charged are as follows:
- The least serious and most commonly charged offences
- Assault and battery – common assault
Criminal Justice Act 1998. s39.
Common assault and battery are summary offences, triable only in the magistrates court. An assault is committed when an accused intentionally or recklessly causes another to apprehend immediate and unlawful violence. A battery being the intentional or reckless infliction of unlawful force. To batter someone. Still has some resonance today.
The offences are generally charged as a common assault, and the maximum sentence is 6 months and a level 5 fine; the racially aggravated form of assault carries a 2 year sentence and statutory fine. The sentencing guidelines consider aggravating features of the offence to be: use of weapon, public place, abuse of trust, domestic violence, victim serving the public, spitting, previous convictions. Mitigating features: impulsive action, minor injury, provocation, single blow.
The court treat violence between motorists very seriously and will consider custody in most cases, as are violence at or within the context of sporting fixtures – see thelwell 2004, where a defendant head butted and punched another player and received a sentence of 3 months imprisonment, upheld on appeal as being ‘deserved and correct’.
Assault occasioning Actual Bodily Harm (ABH)
Contrary to the offences against the person act 1861 s47, this offence is charged where the assault or battery causes some bodily harm which is more than trivial, but less serious than grievous bodily harm.
The crown must prove the defendant intended the victim to apprehend immediate and unlawful violence. The offence is established where the prosecution provide evidence of the assault, and evidence that the assault caused the injury. Aggravating features including:
- use of weapon
- vulnerable victim
- racial motivation
- domestic violence
Such features can be sufficient for the magistrates to commit to the crown court for trial. Where the maximum sentence is 5 years. Current sentence in the magistrates 6 months due to be increased to 12 months by the introduction of new sentencing powers. Heavier sentences are imposed if the victim is a police officer, or involved a vulnerable victim. The racially aggravated form of the offence is punishable with a maximum 7 years imprisonment.
Grievious Bodily Harm (GBH)
Offences against the person act 1861. s20
Defined as unlawfully and maliciously inflicting grievous bodily harm. The understanding of the charge is contained in the words itself. GBH means really serious bodily harm. The injuries caused do not have to be permanent or dangerous, but they have to be more severe than actual bodily harm; ‘maliciously’ means intentionally or recklessly. That meaning to foresee a particular risk, and go on to take it. To be guilty of the offence what must be intended or foreseen is that some physical harm might occur, this need not have amounted to GBH or wounding.
This is a serious charge to face often involving offences of gang violence or use of a weapon. If serious injury has been caused or aggravating features exist, then the magistrates will decline jurisdiction and the case progress in the crown court.
The racially aggravated form of wounding is punishable with up to 7 years imprisonment.
Wounding or causing GBH with intent
Offences against the person act 1861
This is an extremely serious offence if you are staring at a charge sheet with the offence typed on it we suggest you ring us immediately. The charge is indictable only, which means it can only be dealt with in the crown court. To be found guilty of the offence the crown prosecution service must prove the intention to inflict the injury.
It is for this reason that the statutory maximum sentence is life. The court consider a person acting with intent to have a greater moral fault than a person acting recklessly. A custodial sentence is almost always required for this offence. The normal sentencing bracket being between 3 to 8 years. Aggravating features refer to the extent of the injuries, premeditation, racial motivation, use of a weapon and other factors. If these are present, then a sentence of over 8 years will be upheld.
Recent cases have all involved the use of knives. The government are seeking to encourage the judiciary to impose sentences of deterrent, to deter young people from the commission of such acts.
We live in dangerous times where we fear being victims of offences of violence. This can unfortunately generate a climate where there is a risk that we will in fact be the perpetrators of such acts. We see the young arming themselves believing that to do so will prevent them being attacked yet such behaviour creates the risk they seek to avoid.
Other Offences of Violence
Violence between husband and wife or civil partners is treated vey seriously by the court. The incidents of violence in the home was once a matter the police would be reluctant to become involved in but now have specially trained domestic violence teams to investigate. The courts adopt a zero tolerance approach to such offences.
Whilst there are community based sentences dealing with anger management issues, conviction of such offences can lead to the imposition of custodial sentences.
Although not legislated individually there are an increasing number of cases of violence between motorists coming before the courts. These are treated seriously and the vast majority of these charged and convicted will receive a custodial sentence
Harassment Offences: Protection from Harassment Act 1997, SS.1-2)
Definition: A person must not pursue a course of conduct that amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other.
Proof of 2 incidents can legally be sufficient to establish the offence. The fewer the occasions and the wider the spread in time the less likely they are to result in a finding of harassment. On conviction, sentence of 6 months maximum.
The Act was intended to prevent the type of stalking cases that were common at the time. The act has since been widely interpreted and used to involve disputes between partners co-habiting, the sending of abusive telephone calls, and controlling behaviour.
A complex and evolving area of the law that can entrap an individual. On sentence the court can impose a restraining order that on breach can result in a sentence of 5 years. Often in the course of an investigation the police will warn under the prevention from harassment and have you sign their notebook. This will be used in any subsequent court proceedings.
If you are spoken to by the police about these matters, call us immediately.