Assaults on Emergency Workers

July 29, 2021

Helena Williams

In 2018, Assaults on Emergency Workers (Offences) Act came into force, creating a new offence: common assault, or battery, that is committed against an emergency worker acting in the exercise of functions as such a worker.

The new offence did not replace the similar offence already on the statute books: assault on a constable acting in the execution of his duty (s.89(1) Police Act 1996), however the scope of the 2018 offence is greater than the scope of the 1996 offence. Firstly, the 2018 offence applies to not only police officers, but all emergency workers, including, but not limited to, paramedics, nurses and fire fighters (s.3(1)(a) – (j) of the Act).

The 2018 offence has the additional effect of increasing the maximum sentence available: whereas the 1996 offence is summary only and therefore allowed for a maximum sentence of 6 months imprisonment, the new offence has a maximum sentence of 12 months’ imprisonment and is triable either way.

In November 2020, the appeal by way of case stated Campbell v Crown Prosecution Service [2020] EWHC 3868 (Admin) was heard in the High Court. Ms Campbell had been convicted in the Magistrates Court of three charges of assault against an emergency worker. The facts of the case were that Ms Campbell had been approached on the street by officers who noticed that she was intoxicated. One of the officers, PC Regan, attempted to place handcuffs on her wrist. A struggle ensued and she scratched the officer causing PC Regan’s thumb to bleed. Ms Campbell was arrested and taken to West End Central Police Station. On her way to the custody suite she kicked another officer, PC Young. Finally, she kicked PC Regan when taken to wash her hands in the cell area.

It had been submitted on behalf of Ms Campbell that prior to attempting to place Ms Campbell in handcuffs, the officer had placed her hands on Ms Campbell without intending to arrest her and had therefore been acting unlawfully. It was further submitted that all subsequent actions by the police were therefore unlawful and the officers could not have been acting in the exercise of their functions within the meaning of the legislation. This submission relied on the argument that the same test ought to apply to the 2018 offence as applies to the 1996 offence.

Three questions were drafted for the opinion of the High Court:

1. Were we right to conclude that a defendant can be convicted of assaulting an emergency worker contrary to section 1 of the [2018 Act] even where the officer may not have been acting in the execution of his duty?
2. Were we right to conclude, on the facts of this case, that even if PC Regan was acting unlawfully when she took hold of Ms Campbell to handcuff her, this would not prevent us finding her guilty of the subsequent assaults at the police station?
3. Were we right to conclude that the case law pertaining to assault police officer in execution of his duty contrary to section 89 of the Police Act 1996 did not apply to offences brought under section 1 of [the 2018 Act]?

Acting in the exercise of function vs execution of duty

It is well established that an officer acting unlawfully would have the impact of taking them outside of acting in the execution of their duties for the purposes of the 1996 offence.

The courts have grappled with incidents where officers have touched individuals in order to speak to them, without making an arrest.

Although not every incident will take an officer outside of the execution of their duty, it is a question of fact and degree (Donnelly v Jackman [1970] 1 All ER 987).

It was found to be lawful for an officer to take hold of an individual’s arm in order to calm them down (Mepstead v DPP (1996) 160 JP 475) or give them a warning about their conduct which was in danger of amounting to an offence (Pegram v DPP [2019] EWHC 2673 (Admin)). However, it was unlawful for an officer to hold a woman by the arm, without purporting to exercise a lawful power of arrest in order to question her (Collins v Wilcock [1984] 3 All ER 374).

When dealing with the appeal in Campbell, the High Court found that the expression ‘in the exercise of their functions’ was not to be construed in the same way as in the ‘exercise of their duties’. It was therefore found that contrary to the 1996 offence, there was no requirement for an emergency worker to have been acting lawfully for the purposes of the 2018 offence.

Popplewell LJ cited 5 reasons for coming to this conclusion.

1. The use of the word ‘function’ in the 2018 offence connotes a much broader meaning than the use of the word ‘duty’ in the 1996 offence. An officer’s duty includes a duty to act lawfully, and the word duty suggests a reference to responsibilities or obligations. It was considered that the use of the word function necessarily imputed a broader meaning and suggests a reference to an activity or role.
2. Had parliament wished to replicate the circumstances of the 1996 offence they could have amended that Act, as opposed to creating a new Act.
3. The inclusion of all emergency workers in the new offence means that the offence must be construed differently to the 1996 offence: many emergency workers (paramedics, fire fighters) need to employ physical handling as part of their role.
4. A person remains an emergency worker even when not at work.
5. The purpose of the new offence was to provide added protection to emergency workers: the legislation attaches to the “status of being an emergency worker which attracts the added protection provided the worker is acting in that role, not whether some duty is being performed at the time.”

The act of acting unlawfully does not take an emergency worker acting outside of their functions. Whereas in relation to the 1996 offence, a possible recourse to an officer acting unlawfully would be to make a submission of no case to answer at the close of the prosecution’s case, on the basis that the crown had not proved that the officer was acting in the execution of their duties, this recourse is not available in relation to the 2018 offence, no matter how egregious an emergency worker’s actions may be.

Defending an allegation of assault on an emergency worker

If a defendant wishes to argue that an emergency worker was acting unlawfully, the ruling in Campbell provides less possibilities for recourse. The only avenue for the defendant to take is to raise the defence of self-defence:

“If the emergency worker is acting in the execution of their functions but unlawfully, the offence can only be committed if an assault or battery takes place.  This will only occur if the defendant is not acting in lawful self-defence.  If the police officer is acting unlawfully, the individual may be able to establish self-defence, in which case there will be no conviction to provide any inconsistency with a cross-prosecution or civil claim. If, on the other hand, the offence is committed against a police officer acting unlawfully in circumstances where self-defence does not arise, then the simple offence will be committed under s.39, and the aggravated offence will be committed under s.1 of the 2018 Act.”

The impact of this of course, is that whilst the burden of proof remains on the crown to disprove that the defendant was acting in self-defence, in practical terms it places an additional burden on the defendant to raise self-defence, and call evidence to show that their actions were both necessary and proportionate.

When faced with an incident whereby an officer may have been acting unlawfully, the CPS can now circumvent evidential difficulties by charging a defendant under the 2018 act, as opposed to the 1996 act.