‘Being assaulted as a frontline worker, whether that’s police, fire, health or prison, must not be tolerated and those who do so must feel the full weight of the criminal justice system come down on them.’ (John Apter, Chair of the Police Federation for England and Wales, 2020)

For many years, the Police Federation has campaigned for better recognition of the harm suffered by its members at the hands of the public. Police officers are spat at, abused and physically attacked. Along with other unions, it has successfully lobbied for two increases in the maximum sanctions for assaulting a police officer and for an expansion to the list of victims affected to include all ‘emergency workers’ – staff working for the NHS, prison officers and firefighters as well as police.

The Police, Crime, Sentencing and Courts Act 2022 introduces a two-year maximum prison sentence for assaulting an emergency worker (‘assault EW’). This is four times the maximum sentence for common assault, which in every respect other than the victim is the same offence. The law change was not subject to public consultation, but the Ministry of Justice consulted a few organisations including the Bar Council which suggested it was ‘premature’. Has the government shot itself in the foot by bringing in legislation which will not actually deter and reduce attacks on emergency workers, but increase the court backlog?

Evidence of the ‘deterrent effect’

Victims’ groups argued that the increase in maximum sentence would act as a deterrent. Sir Robert Buckland, when Lord Chancellor, said: ‘Now more than ever [emergency workers] must be able to do their extraordinary work without the fear of being attacked or assaulted, which is why we’re determined to look at how our laws can protect them further.’

But when the legislation was tabled, it looks as if sharp minds in the Ministry of Justice intervened. The impact evaluation for the legislation says evidence for the new sanction acting as a deterrent was ‘weak and mixed’ and justified the legislation on the basis it would send a message: ‘By increasing the maximum penalty for this offence, the justice system may be portrayed as reaffirming the social value of emergency workers… This may be a beneficial alignment of government policy with the public’s social values.’ The impact evaluation suggested an extra 200 prison places will be needed to satisfy the requirements of the legislation.

Transform Justice recently published Protecting the protectors? Do criminal sanctions reduce violence against police and NHS staff?, a report on the impact of this legislation, focusing on vulnerable defendants (June 2022: bit.ly/3KVkUfT). The increase in penalty achieves its symbolic purpose, but there is no evidence the measure will reduce assaults. Since the last increase in the maximum sanction (from six months to a year custodial sentence), recorded assaults on emergency workers have increased.

We surveyed defence lawyers about this offence. They were concerned that charging is frequently not in the public interest and that defendants with severe mental health problems and/or who are neurodivergent are being pointlessly swept into the criminal justice system.

‘I have so many examples of the most minor assaults against PCs involving vulnerable defendants that clog up the mags and Crown Court. Slight jostle on arrest, poking a utility belt, a head jerk that gets called an “attempted head butt”. Assault EW on PCs is probably the most overcharged offence in my experience so far. Complicated by the fact that the defendants are normally both drunk/high AND suffering from MH issues.’ (Criminal barrister)

That so many accused of assault EW have mental health issues is disturbing but not surprising. The most numerous victim group covered by the legislation are NHS workers – they spend much of their time working with patients with this profile. Police and NHS training in dealing with such mental disabilities is often poor. So, assaults can be triggered by insensitive approaches or happen while someone is in the middle of a mental health crisis.

‘Rob thought that there were people in his house intent on killing him; police and ambulance were called. The arrest was forceful and painful: Rob’s reaction was to lash out with an “air bite”. He literally bit the air. For this he was charged with assault emergency worker – a breach of his suspended sentence which triggered him being sent to prison.’ (Father of autistic defendant)

Lawyers tear out their hair about these cases and what they perceive as a default charging policy, almost regardless of the circumstances. The police and Crown Prosecution Service say that if someone has capacity, the prosecution must simply abide by the public interest test based on ‘(i) whether the suspect is or was affected by a significant health issue and (ii) balancing that with seriousness, re-offending and safeguarding as relevant factors.’ Our evidence suggests that the CPS leans heavily towards prosecution despite no evidence that conviction reduces offending.

There is also despair at the lack of information about clients gathered or communicated by police. There is no data on the proportion of those accused of assault EW who have mental disabilities. Screening for such issues in police custody is hit and miss. So it is left to lawyers to ask for their clients to be properly assessed. They say that the CPS will only take neurodiversity/mental health issues into consideration if it has full psychiatric reports.

A lot of time is spent by lawyers on these cases; much more so than on a typical common assault case. The increase in the maximum sentence to one year, and now to two, make these either way cases, triable in the Crown Court, despite the fact that most of those convicted get a non-custodial sentence. The complexity of dealing with mental health issues and of taking cases to the Crown Court, where trials frequently crack, means lawyers lose money on these cases.

‘Defendant clearly mentally unwell caught on camera assaulting a police officer. Remanded in custody and case committed to Crown Court. Put straight into healthcare wing of prison. Two months later still in prison healthcare as there has been no available bed for his admission [to hospital]. Defendant has now served equivalent of highest likely sentence for this offence. CPS refuse to review without medical evidence. We can’t get the medical evidence. This is an “elected” case so we will get the grand total of £330 fixed fee to sort out this mess. Have spent more time than this total fixed fee just making calls today.’ (Solicitor)

So great are the losses made on these cases that the London Criminal Courts Solicitors’ Association is recommending members refuse to take on any assault EW cases, and the difficulties in defendants finding representation seem to be resulting in many appearing without lawyers.

‘You have hundreds of these cases in the Crown Court… often for spitting at a police officer, or maybe smacking a police officer. It is something that needs to be dealt with by the justice system, but it does not need a trial in the Crown Court, and often these people are self-representing. Often, they’ve got mental health issues, and it chokes up the system when you might have something much more serious – such as a rape – to deal with.’ (Andrew Cayley, Chief Inspector of the Crown Prosecution Inspectorate)

Relatively minor assaults being heard in the Crown Court and defendants appearing unrepresented are a recipe for exacerbating the court backlog. Transform Justice is advocating for more cases to be diverted from court altogether. Even though many assaults on emergency workers involve no physical injury, very few cases are dealt with using an out of court disposal. Resolving cases out of court would be far more appropriate than charging for many cases involving people with severe mental health problems. Currently there are few out of court disposal programmes which are designed to meet the needs of those with cognitive/mental health disabilities, but the Ministry of Justice has commissioned research with a view to increasing the number of such suspects who are diverted rather than charged.

Given the inappropriateness of court sanctions for many vulnerable defendants, let’s hope that this new sanction regime is honoured more in the breach than the observance.