Assault with intent to resist arrest

Offences against the Person Act 1861, s.38
Effective from: This guideline applies to all offenders aged 18 and older, who are sentenced on or after 13 June 2011

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.

User guide for this offence


Step 1 – Determining the offence category

The court should determine the offence category using the table below.

Category 1

Greater harm and higher culpability

Category 2

Greater harm and lower culpability; or lesser harm and higher culpability

Category 3

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