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Assaults on Emergency Workers: Protecting the Protectors or an Empty Promise?

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About The Author

Christopher Lockley (Regular Writer)

Christopher is a Management graduate from the London School of Economics and Political Science with a particular interest in criminal law. He is eagerly awaiting the start of his GDL at Leeds Law School following a desired career change. Outside the law, he enjoys bouldering, mountaineering and football.

Power is no blessing in itself, except when it is used to protect the innocent.

Jonathan Swift

The Assaults on Emergency Workers (Offences) Act 2018, proposed as a response to the recent increase in the number of attacks on emergency workers, was used last month to jail its first offender, Daniel Hilton, who, in a state of drug induced paranoia, bit his arresting officer.

Those employed in some public sector roles have experienced a seismic increase in common assaults whilst on the job. In the NHS for example, a staff survey revealed that 15.2% of respondents had dealt with physical violence from patients, relatives or the public in the past year. Other public sector workers, namely firefighters, reported 933 incidents – the highest since data collection began in 2010/11. With public concern mounting for the safety of those employed to protect the people, the Act was presented to the House of Commons, led by Chris Bryant MP. It received unanimous support and was hailed as a monumental victory in pursuit of protecting the protectors.

This article will outline key components of the Act and ask whether the resultant changes to law are sufficient for achieving what the Act claims to; namely, to protect the protectors. Exploring this question will illuminate whether the Act's introduction marks a genuine attempt at protecting emergency workers, or, conversely, constitutes an empty promise that seeks to pull wool over the eyes of a concerned nation.

The Act

The Act has two fundamental aims. Firstly, the creation of a separate either way offence of common assault and battery against an emergency worker acting in the exercise of functions as such a worker, resulting in the provision of increased legal protection in the form of doubled sentences. A person guilty of an offence under the Act will be liable, on summary conviction or conviction on indictment, to imprisonment for a term not exceeding 12 months, or to a fine, or to both.

Secondly, it seeks to direct courts to consider attacks on emergency workers as an aggravating factor for determining sentences. Section 2(2) of the Act states that the court:

(a) must treat the fact mentioned in subsection (1)(b) as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and

(b) must state in open court that the offence is so aggravated.

The term “emergency worker”, according to Section 3(1), refers to constables, National Crime Agency officers, prison officers, prison custody officers, custody officers, those providing fire services or fire and rescue services, search services or rescue services (or both), and those employed by NHS health services or services in the support of NHS health services. What's more, Section 2(4) makes provision for those carrying out emergency services whilst off-duty, stating that:

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.

From the outset, the Act seemingly seeks to provide increased legal protection to a wide-range of public sector employees. Moreover, its inclusion of off-duty workers emanates a certain sincerity that the Act is trying to protect those who protect the public. But to what extent does the new law differ from the old? Prior to the introduction of the Act, assaults committed against emergency workers which resulted in trivial or no injury carried a maximum sentence of 6 months' imprisonment. Moreover, only police constables were protected by a separate law - 'assault on a police constable in the execution of his duty', per Section 89(1) of the Police Act 1996 - with instances of attacks on other emergency workers being dealt with via common assault. The former offence under the Police Act carried far stricter starting points in sentencing guidelines than 'common assault', even if the court were to use 'offence committed against those working in the public sector or providing a service to the public' as an aggravating factor.

To this end, the 2018 Act pursues equality for all emergency workers. It signals 'if you work to protect us, we'll protect you; and we'll do so by severely punishing offenders in the form of doubled sentences.' The question, however, is whether this doubling of sentences is a sufficient deterrent to the types of individual carrying out such offences? In addition, is it even feasible to suggest that sentences will be doubled, considering constraints on magistrates' courts? And even if we were to answer yes to both of these questions, does the genuine protection of our emergency workforce not necessitate a far more complex solution than criminal justice can offer?

Does Doubling a Sentence Make Much Difference?

The first point to note is that if offenders are tried summarily in the Magistrates’ Court, sentencing powers will not allow for the deliverance of 12 months' imprisonment. Section (1)4 of the Act reads:-

In relation to an offence committed before the coming into force of section 154(1) of the Criminal Justice Act 2003 (increase in maximum term that may be imposed on summary conviction of offence triable either way), the reference in subsection (2)(a) to 12 months is to be read as a reference to 6 months.

This has the effect of meaning that a case would need to be sentenced in Crown Court to be eligible for the maximum of 12 months' imprisonment. This would requisite a compound of factors indicating higher culpability, increased harm and seriousness (for example, injury or fear of injury, a significant degree of premeditation, and previous convictions).

However, even if we were to ignore the constraints of Magistrates' Courts and optimistically assume cases of common assault and battery are to be tried on indictment in the Crown Court, will the implementation of this Act really deter offenders? When we talk about deterrence, we refer to the use of punishment as a threat to deter people from offending. It is based upon rational choice theory which assumes that people weigh up the costs and benefits of a course of action before proceeding. But many cases of attacks on emergency workers demonstrate that there is no rational choice process involved. Why? Because, all too often, these attacks take place in circumstances of intoxication, just as in the case of Daniel Hilton. They take place in settings wherein people are often vulnerable, under severe stress and even mental impairment. There is no weighing up of the costs or benefits and therefore no consideration of whether a sentence is 6 or 12 months.

So the 2018 Act 'doubles sentences'. Theoretically, yes. The reality, however, is far less dramatic than the media would have you believe. For a case to even be considered for trial on indictment in the Crown Court and therefore be capable of receiving the maximum sentence, the offender need satisfy an extensive list of factors indicating greater harm, culpability and seriousness. Even then, as the recent case of Aaron Wilson demonstrates, even the presence of these factors does not guarantee a Crown Court trial. What's even more interesting, however, is that the circumstances surrounding many attacks on emergency workers are one's which indicate that the offender is unable to think rationally about their decision, which effectively renders redundant the doubling of sentences if this is truly the government's grand plan for protecting the protectors.

The Aggravating Factor

The second part of the Act, which focuses on treating a victim’s status as an emergency worker as an aggravating factor for determining sentences, is also unavailing. If we look at the sentencing guidelines for Common Assault (Section 39 Criminal Justice Act 1988) we see, under the heading 'other aggravating factors', an “offence committed against those working in the public sector or providing a service to the public” already exists.

The new Act therefore upgrades the aggravating factor to a matter of law, rather than merely a sentencing council guideline. But if courts were adequately following guidelines before the Act, one's status as an emergency worker would already have been taken into consideration and reflected in sentencing. Its inclusion in the 2018 Act is little more than a technicality, rather than a life-changing reform.

Far More Complex Than Criminal Justice?

So what we can say about the Act is that it has introduced a doubled sentence, albeit via trial on indictment in the Crown Court. It has upgraded one's status as a public-sector worker from an aggravating factor to be taken into consideration by sentencing councils to a matter of law; and it has placed, as far as we can tell, a vast array of public-sector employees on a level-playing field in the eyes of the law. That being said, the question arises as to whether protecting our protectors requires a far more complex solution than criminal justice can offer. Does the Act fail to protect the protectors due to the above noted shortcomings, or does it merely miss the mark in its understanding of what is actually required to accomplish its aims? To really solve the problem and to protect the protectors, a plethora of public policy improvements accompanied by appropriately targeted, adequate funding is needed. Austerity measures have impacted a multitude of public services and it is here that solutions can be found. Police, already under significant stress having had the size of the force reduced by over 20,000 since 2010, are expected to fight crime with £700m less per year by 2020. That translates to fewer officers attending heated situations, consequentially leading to an increase in lone-working and a disposition for these types of attacks to happen. 2017-18 data also reveals a 22% increase since 2008-09 in attendances to A&E services, with a staggering 23.8 million attendances. While funding for the Department of Health continues to grow, its real term growth is significantly lower than the rate of increase needed (as projected by the Office of Budget Responsibility). Subsequently, services such as A&E become crowded, creating an unpleasant environment of stressed, often heavily intoxicated individuals, wherein the sort of irrational attacks on emergency workers are rife.

Protecting the protectors therefore necessitates much more than criminal justice alone can solve. The problem is embedded in the foundations of society. Only when we tackle the root of the problem will we be truly able to protect those who protect us.

Conclusion

The 2018 Act has undoubtedly introduced some positive changes. In theory, sentences have been doubled. One's status as a public-sector employee must be taken into consideration as a matter of law, rather than a matter of sentencing council guidelines, and a vast array of employees are now offered improved legal protection where previously their status as an emergency worker may not have been recognised. But while such changes are fundamentally positive, they do not constitute the solution to increased incidences of attacks on emergency workers. They do not, as the pioneers of the Act would have you believe, protect the protectors. Nothing noted afore would serve to actually protect the protectors. Yes, they would work to detain those who commit said offences for longer periods (provided they are trialled on indictment in Crown Court), and perhaps, in some instances, they would prove significant enough to act as a deterrent. But as Hilton's case demonstrates, often these attacks are committed in the heat of the moment. They are drug or alcohol fuelled. They are the result of mental health issues. They are the result of underlying violent tendencies. Criminal justice alone can only do so much. 

To really solve the problem and to protect our protectors necessitates a plethora of changes to public policy which improve the situation under which these types of attack occur. One need only look at Scotland, wherein a similar law has been in place since 2005 with little benefit (in fact, Scotland recently recorded its highest incidence of assaults on emergency workers in the preceding three year period), to see that the problem is not one of criminal justice alone, but rather one embedded in the foundations of society. Those who choose to spend their lives working toward the betterment of others in less than favourable conditions deserve so much more than a sugar-coated law.

The Act is Government's plaster. The wound, however, requires surgery.

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Tagged: Criminal Law, Policing

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