Despite new legislation bringing into force the offence of assaulting an emergency worker, there are as yet no guidelines to assist courts when sentencing for this offence. Tony Williams scrutinises the recommendations made by the Court of Appeal.
On 26 March 2019 the Court of Appeal considered the case of McGarrick  EWCA Crim 530. The Defendant was sentenced for fraud by false representation, together with assault by beating of an emergency worker under s1(1) of the Assaults on Emergency Workers (Offences) Act 2018 (a relatively new offence I have previously analysed in detail). The sentence was 4 months imprisonment consecutive for the assault (total 13 months for both offences).
The Defendant sought leave to appeal his sentence for the assault on the basis that it was much too high, which led to a manifestly excessive sentence overall. It was submitted inter alia on behalf of the Defendant that when sentencing for an assault on an emergency worker, the Court should have regard to the Definitive Guideline for Assault and reference was made to the categories of common assault available.
In judgment on this point, Warby J observed that it was inappropriate to rely on the existing Assault Guidelines. He observed that the new legislation had been introduced to increase the maximum sentence where the victim of an assault is an emergency worker by making the sentencing regime for such offences more severe. As such, “the guidelines for sentencing those offences clearly cannot be read across and applied to offences as sentenced under the regime introduced by the 2018 Act”, and “an approach which simply looks to uplift from sentences for other offences is not helpful…”
The Court therefore reviewed the sentence by reference to the “overarching requirements that any sentence must be just and proportionate and no more than commensurate with the seriousness of the offending.” Despite this, the court must bear in mind the “clear legislative intent that assaults on public servants doing their work as part of the emergency services should be sentenced more severely than hitherto.” Leave to appeal was refused and the sentence was upheld.
This now means that until the Sentencing Council turns its mind to this offence, there is no helpful guidance on how to sentence for assaulting an emergency worker. From 1 October 2019 the General Guideline: overarching principles will apply to any offence not covered by specific guidelines, but there will be no helpful categorisations to assist the court in deciding how to treat an assault on an emergency worker when compared with a common assault. All we know is that courts are encouraged to treat such an offence more seriously without simply imposing an uplift.
The lack of clarity provided by this judgment is, with respect, unhelpful. Those who regularly appear in Magistrates’ Courts will be aware of the problems this open-ended judgment causes, particularly given historic inconsistencies in sentencing practice between individual courts and benches. It will consequently be more difficult to advise clients as to the likely sentence they will face.
However, the Court of Appeal’s unwillingness to lay down a rigid approach does allow significant room for manoeuvre when advancing mitigation – enabling advocates to construct persuasive arguments in favour of a more challenging sentence than any guidelines might allow.
Tony Williams is able to advise and represent clients in any proceedings involving assaulting an emergency worker or cases involving the exercise of police powers.
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