01 April 2020
Not reviewed after the date of publication
Has the new offence of assaulting an emergency worker replaced the offence of assaulting a police constable, or can both charges still be used?
The offences under section 89 of the Police Act 1996 have not been repealed and can still be used in relation to both assaults and obstructions. We have provided further information below regarding the two pieces of legislation, and the differences between the offences.
The Assaults on Emergency Workers (Offences) Act 2018 came in force on 13th November 2018. Section 1 of the Act states that when the offence of common assault or battery is committed against an emergency worker, acting in the exercise of his functions as such a worker, the offence shall be triable either way and as such, carry a higher penalty. The circumstances in which this applies, and the penalty, are contained within that section; however, the actual offences are still provided by section 39 of the Criminal Justice Act 1988.
The summary offence under section 89(1) of the Police Act 1996 remains in force and so technically, a prosecution for either offence could be considered in relation to incidents of assaults taking place on police officers. However, as far as we are aware, CPS are advising that the new either way offences be used where possible.
We are unable to comment on why Parliament have chosen to amend the legislation as they have. Looking at the reports regarding the progress of the original Bill, it appears that a suggestion was made to amend the penalty for the section 89 offence (rather than to repeal it). The amendment would have increased the penalty for the section 89 offence to match that of the new offence (12 months imprisonment and/or a fine). This amendment to the penalty of section 89 was withdrawn. When debated, the following was stated:
'New clauses 1 and 2 relate to the existing law - in particular the Police Act 1996, as it relates to a police officer in the execution of their duty - and seek to do two things. The first is to increase the maximum penalty from six months to 12 months. On that, we respectfully argue that if the Bill passes today, we will have already increased to 12 months the maximum penalty for such an assault on a police officer in the exercise of their functions. It would therefore be unnecessary to further amend the Police Act.'
There appears to have been no suggestion of repealing the section 89 offence altogether. Our thoughts are that this may be due to two factors:
Section 89 covers more than just assault; section 89(2) provides offences of resisting or wilfully obstructing a constable.
Section 89 also covers 'a person assisting a constable in the execution of his duty', which could include people who would not fall under the meaning of an 'emergency worker' under section 3 of the 2018 Act.
However, where the new offence under section 39 is satisfied, we would expect that offence to be used, rather than the section 89 offence.
Section 89 of the Police Act 1996 refers to a constable acting 'in the execution of his duty'. In relation to the offence of assaulting an emergency worker under section 39 of the Criminal Justice Act 1988, the legislation refers to an emergency worker acting 'in the exercise of his functions as such a worker'. There are no statutory definitions of either wording, although there are numerous cases that have considered whether an officer was acting 'in the execution of his duty' (see document D175 on PNLD).
Despite the differences in wording, it is our view that there is very little difference between the two; in both cases it would appear that the officer needs to be carrying out work in relation to his role. However, in relation to assaults against emergency workers, section 2(4) of the Assaults on Emergency Workers (Offences) Act 2018 does state that the offence can apply to an officer who is not at work at the time, if they are carrying out functions which are part of their role:
'2(4) For the purposes of subsection (1)(b), the circumstances in which an offence is to be taken as committed against a person acting in the exercise of functions as an emergency worker include circumstances where the offence takes place at a time when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions as an emergency worker.'
Ministry of Justice (MOJ) Circular 1/2018 provides guidance and further details on the 2018 Act.
The offence is relatively new and we are not yet aware of any appeal cases in relation to it. The differences may become clearer once some case law is published.
To read more legislation about this subscribe to PNLD.