Assault with intent to resist arrest
This is a specified offence for the purposes of section 224 of the Criminal Justice Act 2003
Triable either way
Maximum when tried summarily: Level 5 fine and/or 26 weeks’ custody
Maximum when tried on indictment: 2 years’ custody
Offence range: Fine – 51 weeks’ custody
This guideline applies to all offenders aged 18 and older, who are sentenced on or after 13 June 2011. Starting point and category ranges apply to all offenders in all cases, irrespective of plea or previous convictions.
Step 1 – Determining the offence category
The court should determine the offence category using the table below.
Greater harm and higher culpability
Greater harm and lower culpability; or lesser harm and higher culpability
Lesser harm and lower culpability
The court should determine the offender’s culpability and the harm caused, or intended, by reference only to the factors identified in the table below (as demonstrated by the presence of one or more). These factors comprise the principal factual elements of the offence and should determine the category.
Factors indicating greater harm
- Sustained or repeated assault on the same victim
Factors indicating lesser harm
- Injury which is less serious in the context of the offence
Factors indicating higher culpability
Statutory aggravating factors:
- Offence racially or religiously aggravated
- Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation)
- Offence motivated by, or demonstrating, hostility to the victim based on the victim’s disability (or presumed disability)
Other aggravating factors:
- A significant degree of premeditation
- Use of weapon or weapon equivalent (for example, shod foot, headbutting, use of acid, use of animal)
- Intention to commit more serious harm than actually resulted from the offence
- Deliberately causes more harm than is necessary for commission of offence
- Leading role in group or gang
- Offence motivated by, or demonstrating, hostility based on the victim’s age, sex, gender identity (or presumed gender identity)
Factors indicating lower culpability
- Subordinate role in group or gang
- Lack of premeditation
- Mental disorder or learning disability, where linked to commission of the offence
Step 2 – Starting point and category range
Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. A case of particular gravity, reflected by multiple features of culpability in step one, could merit upward adjustment from the starting point before further adjustment for aggravating or mitigating features, set out below.
|Offence Category||Starting Point (Applicable to all offenders)||Category Range (Applicable to all offenders)|
|Category 1||26 weeks’ custody||12 weeks’ custody – 51 weeks’ custody|
|Category 2||Medium level community order||Low level community order – High level community order|
|Category 3||Band B fine||Band A fine – Band C fine|
|Fine Band A||50% of relevant weekly income||25 – 75% of relevant weekly income|
|Fine Band B||100% of relevant weekly income||75 – 125% of relevant weekly income|
|Fine Band C||150% of relevant weekly income||125 – 175% of relevant weekly income|
|Fine Band D||250% of relevant weekly income||200 – 300% of relevant weekly income|
|Fine Band E||400% of relevant weekly income||300 – 500% of relevant weekly income|
|Fine Band F||600% of relevant weekly income||500 – 700% of relevant weekly income|
The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). See below for non-exhaustive examples of requirements that might be appropriate in each.
At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so. For further information see the Imposition guideline.
A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.
Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate
In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary
Offences that obviously fall within the community order band
Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances
More intensive sentences which combine two or more requirements may be appropriate
Suitable requirements might include:
Suitable requirements might include:
Suitable requirements might include:
* If order does not contain a punitive requirement, suggested fine levels are indicated below:
BAND A FINE
BAND B FINE
BAND C FINE
The approach to the imposition of a custodial sentence should be as follows:
1) Has the custody threshold been passed?
- A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
- There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
- The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.
2) Is it unavoidable that a sentence of imprisonment be imposed?
- Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
- For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.
3) What is the shortest term commensurate with the seriousness of the offence?
- In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.
4) Can the sentence be suspended?
- A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.
The following factors should be weighed in considering whether it is possible to suspend the sentence:
Factors indicating that it would not be appropriate to suspend a custodial sentence
Factors indicating that it may be appropriate to suspend a custodial sentence
Offender presents a risk/danger to the public
Realistic prospect of rehabilitation
Appropriate punishment can only be achieved by immediate custody
Strong personal mitigation
History of poor compliance with court orders
Immediate custody will result in significant harmful impact upon others
The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.
Whenever the court reaches the provisional view that:
- the custody threshold has been passed; and, if so
- the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;
the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.
Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.
For further information and sentencing flowcharts see the Imposition guideline.
The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range. When sentencing category 1 offences, the court should consider whether the sentence can be suspended.
Factors increasing seriousness
Statutory aggravating factors:
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
- Offence committed whilst on bail
Other aggravating factors include:
- Location of the offence
- Timing of the offence
- Ongoing effect upon the victim
- Gratuitous degradation of victim
- Failure to comply with current court orders
- Offence committed whilst on licence
- An attempt to conceal or dispose of evidence
- Failure to respond to warnings or concerns expressed by others about the offender’s behaviour
- Commission of offence whilst under the influence of alcohol or drugs
- Established evidence of community impact
- Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution
- Offences taken into consideration (TICs)
Factors reducing seriousness or reflecting personal mitigation
- No previous convictions or no relevant/recent convictions
- Single blow
- Good character and/or exemplary conduct
- Determination and/or demonstration of steps taken to address addiction or offending behaviour
- Serious medical conditions requiring urgent, intensive or long-term treatment
- Isolated incident
- Age and/or lack of maturity where it affects the responsibility of the defendant
- Mental disorder or learning disability, where not linked to the commission of the offence
- Sole or primary carer for dependent relatives
Step 3 – Consider any other factors which indicate a reduction, such as assistance to the prosecution
The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Step 4 – Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.
Step 5 – Dangerousness
Assault with intent to resist arrest is a specified offence within the meaning of Chapter 5 of the Criminal Justice Act 2003 and at this stage the court should consider whether having regard to the criteria contained in that Chapter it would be appropriate to award an extended sentence.
Step 6 – Totality principle
If sentencing an offender for more than one offence or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.
Step 7 – Compensation and ancillary orders
Step 8 – Reasons
Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 – Consideration for remand time
Sentencers should take into consideration any remand time served in relation to the final sentence.
The court should consider whether to give credit for time spent on remand in custody or on bail in accordance with sections 240 and 240A of the Criminal Justice Act 2003.