Assaulting a constable in the execution of his duty

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Assaulting a constable in the execution of his duty is a statutory offence of aggravated assault in England and Wales, Scotland, Northern Ireland, and Hong Kong.

An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.

England and Wales Administrative jurisdiction within the United Kingdom

England and Wales is a legal jurisdiction covering England and Wales, two of the four countries of the United Kingdom. ’England and Wales’ forms the constitutional successor to the former Kingdom of England and follows a single legal system, known as English law.

Scotland Country in Europe, part of the United Kingdom

Scotland is a country that is part of the United Kingdom. Sharing a border with England to the southeast, Scotland is otherwise surrounded by the Atlantic Ocean to the north and west, the North Sea to the northeast, the Irish Sea to the south, and the North Channel to the southwest. In addition to the mainland, situated on the northern third of the island of Great Britain, Scotland has over 790 islands, including the Northern Isles and the Hebrides.

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England and Wales

Section 89(1) of the Police Act 1996 provides:

Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. [1]

The standard scale is a system whereby financial criminal penalties (fines) in legislation have maximum levels set against a standard scale. Then, when inflation makes it necessary to increase the levels of the fines the legislators need to modify only the scale rather than every individual piece of legislation.

It is a summary offence. The "starting sentence" is a short custodial sentence, and it is considered a more serious offence than common assault.

A summary offence is a crime in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment.

The constable must be acting "in the execution of his duty" for this offence to be made out. If he exceeds the remit of his duty (e.g. acts unlawfully in assaulting the Defendant), the offence will not be made out.

The Defendant does not actually have to be aware that the person he is assaulting is a constable. [2]

The fact that the victim is a police officer is not, in itself, an aggravating factor which would justify more serious charge. The criteria for a charge under section 47 of the Offences Against the Person Act 1861 do not distinguish between members of the public and police officers as the victim.

Offences Against the Person Act 1861

The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the criminal law consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation Act, the Offences against the Person Act 1828, incorporating subsequent statutes.

According to R (Fullard) v Woking Magistrates' Court (2005) EWHC 2922 (Admin) a constable cannot be acting in the execution of their duty when unlawfully on private property. Thus, if the officer is not acting under the authority of a warrant, acting under a statutory or common law power of entry, or in hot pursuit, the person lawfully in possession of land is entitled to withdraw permission for the officer to remain. Should the officer refuse to leave, the officer will cease to be "acting in the execution of their duty". To make an effective withdrawal of permission, clear words must be used. Merely directing offensive remarks at the officer which amount to 'go away' will not necessarily withdraw any implied permission to enter or remain. Further, when properly required to leave, the officer must be allowed a reasonable opportunity to leave. However, once the opportunity to leave voluntarily has passed, it will not be an assault for the land owner to use reasonable force to cause the officer to leave.

For the purposes of section 89 of the Police Act 1996, any person who is carrying out surveillance in England and Wales under section 76A of the Regulation of Investigatory Powers Act 2000 is to be treated as if he were acting as a constable in the execution of his duty. [3]

Regulation of Investigatory Powers Act 2000 Act of the Parliament of the United Kingdom

The Regulation of Investigatory Powers Act 2000 (c.23) is an Act of the Parliament of the United Kingdom, regulating the powers of public bodies to carry out surveillance and investigation, and covering the interception of communications. It was ostensibly introduced to take account of technological change such as the growth of the Internet and strong encryption.

Scotland

Section 90 of the Police and Fire Reform (Scotland) Act 2012 provides that it is an offence for a person to, amongst other things, assault a constable in the execution of his duty or a person assisting a constable in the execution of his duty.

Northern Ireland

Section 66(1) of the Police (Northern Ireland) Act 1998 (c.32) now provides that it is an offence for a person to, amongst other things, assault a constable in the execution of his duty, or a person assisting a constable in the execution of his duty.

History

The offence of 'assault on a constable in the execution of his duty' was formerly created section 7(1)(a) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968.

Hong Kong

In Hong Kong this can be a summary offence, and also prosecutable under the Police Force Ordinance or the Offences Against the Person Ordinance. [4]

See also

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