Offences against the Person, incorporating the Charging Standard

• Introduction
• Charging Offences involving Domestic Abuse
• Assaults on Emergency Workers and Public Servants
• Assaults on people providing a public service
• Common Assault – s.39 Criminal Justice Act 1988
• Assault occasioning Actual Bodily Harm (ABH) – s.47 OAPA 1861
• Common assault or ABH: Decision on charge
• Common Assault, ABH, non-fatal strangulation or non-fatal suffocation: decision on charge
• Unlawful wounding/inflicting GBH – s.20 and wounding/causing GBH with intent – s.18
• Assault with intent to resist arrest – s.38 OAPA 1861
• Maximum sentence and racially and/or religiously aggravated assaults
• Throwing corrosive fluid on a person – s.29 – acid attacks
• Threats to kill – s.16 OAPA 1861
• Other OAPA 1861 Offences
• Assault on an Immigration Officer
• False imprisonment
• Ill-treatment or neglect, contrary to section 44 of the Mental Capacity Act 2005 (MCA)
• Attempted murder, contrary to section 1(1) Criminal Attempts Act 1981
• Child abuse (non-sexual)
• Reasonable punishment of a child

Introduction

This Charging Standard is designed to assist prosecutors and investigators in selecting the most appropriate charge, in the light of the facts that can be proved, at the earliest possible opportunity where offences against the person are concerned.

The Charging Standard is subject to:

• the principles set out in the Code for Crown Prosecutors (“the Code”): in particular the two-stage Full Code Test, and section 6, which provides guidance on the selection of charges;
• the need for each case to be considered on its facts and merits;
• any guidance on the use of out of court disposals such as cautions or conditional cautions.

Charging Offences involving Domestic Abuse

Prosecutors should refer to the Domestic Abuse legal guidance when considering cases involving domestic abuse.

Statutory time limits for offences of common assault or battery which amount to domestic abuse

Prosecutors should also have regard to section 39A Criminal Justice Act 1988 (CJA 1988), inserted by section 49 Police Crime and Sentencing Courts Act 2022 (PCSCA 2022). This section applies to any offences of common assault or battery which amount to domestic abuse, as defined in section 1 Domestic Abuse Act 2021 and applies to offences committed on or after 28 June 2022, it is not retrospective, (section 39A(7) CJA 1988).

When a victim has made a statement or a video recorded interview (VRI) with the view to its possible admission as evidence in proceedings and it has been provided to a police officer or person authorised by the police, (section 39A(2) and (3) CJA 1988). The proceedings can be commenced when both the following apply:

• at any time within 2 years from the date of the offence to which the proceedings relate, and
• within six months from the first date the victim made a statement or was interviewed about the incident, (section 39A(4) CJA 1988).

This has effect despite the limitations in section 127 Magistrates’ Court Act 1980, which states that summary only proceedings must be commenced within 6 months of the date of the offence was committed, (section 39A(5) CJA 1988).

Assaults on Emergency Workers and Public Servants

Prosecutors should have regard to the Assaults on Emergency Workers (Offences) Act 2018 Guidance when considering assaults committed against an emergency worker acting in the exercise of functions as such a worker.

Assaults on people providing a public service

Prosecutors should have regard to the section 68A Sentencing Act 2020 (SA 2020), inserted by section 156 Police Crime and Sentencing Act 2022, which states that when the Court is sentencing an assault against a person providing a public service, performing a public duty or providing services to the public, the court must treat this as an aggravating factor when sentencing and must state in open court that the offence has been aggravated. Section 68A(4) SA 2020 defines ‘providing public services to include a reference to providing goods or facilities to the public’.

The aggravating factor should be applied by the Court to the following offences, (section 68A(3) SA 2020):

• Common assault or battery (section 39 CJA 1988)
• Threats to Kill (section 16 OAPA 1861)
• Wounding with intent to cause GBH (section 18 OAPA 1861)
• Malicious wounding (section 20 OAPA 1861)
• Assault occasioning actual bodily harm (section 47 OAPA 1861)
• Any other offence the court considers has been committed against the against a person providing a public service, performing a public duty or providing services to the public (section 68A(5) SA 2020)

However, prosecutors should note this does not apply to assaults on emergency workers which is already covered under section 67(2) SA 2020. Prosecutors should refer to the  Assaults on Emergency Workers (Offences) Act 2018 Guidance for more information.

Common Assault – s.39 Criminal Justice Act 1988

An assault is any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence.

The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person. Where there is a battery, the defendant should be charged with ‘assault by beating’: DPP v Little [1992] QB 645. Provided there has been an intentional or reckless application of unlawful force the offence will have been committed, however slight the force.

Assault, as distinct from battery, can be committed by an act indicating an intention to use unlawful violence against the person of another – for example, an aimed punch that fails to connect. In Misalati [2017] EWCA 2226 the appellant spat towards the complainant. The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.

Guidance on potential defences is set out in the separate legal guidance Self-defence and the Prevention of Crime. A person may use such force as is reasonable in the circumstances for the purposes of:

• self-defence
• defence of another
• defence of property
• prevention of crime; or
• lawful arrest.

An element of the offence of common assault is lack of consent so that the prosecution may (where it is a live issue) have to establish that the offence was committed without consent. However, a lack of consent can be inferred from evidence other than the direct evidence of the victim – CPS v Shabbir [2009] EWHC 2754 (Admin). Most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact: Collins v Wilcock [1984] 1 WLR 1172.

Common assault is a summary offence. However, if the requirements of section 40 of the Criminal Justice Act 1988 are met it can be included as a count on an indictment.

Special considerations apply to common assault where the defence of reasonable punishment of a child falls for consideration - see the Reasonable Punishment of a Child section below.

Assault occasioning Actual Bodily Harm (ABH) – s.47 OAPA 1861

The offence is committed when a person intentionally or recklessly assaults another, thereby causing Actual Bodily Harm. It must be proved that the assault (which includes “battery”) “occasioned” or caused the bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling: (R v Donovan [1934] 2 KB 498).

The House of Lords in DPP v Parmenter [1992] 1 AC 699 held that the mens rea of this offence is the same as that for battery; all that need be proved further is that actual bodily harm in fact followed.

There is some ambiguity as to the ambit of this offence. In DPP v Smith [2006] EWHC 94 (Admin) the court determined that the offence of ABH had been committed but acknowledged that common assault could have been prosecuted. The appellant used kitchen scissors to cut off the complainant’s ponytail and some hair off the top of her head without her consent. Harm may therefore include the substantial cutting of a person’s hair. The court stated that in ordinary language, “harm” is not limited to “injury” but extended to hurt or damage, and that “bodily”, whether used as an adjective or an adverb, is “concerned with the body” and not limited to skin, flesh and bones. “Actual”, as defined in the authorities, means that the bodily harm should not be as trivial or trifling as to be effectively without significance. Evidence of external bodily injury, or a bruise or break to the skin, is not a necessary ingredient, and neither is physical pain consequent upon the assault.

The House of Lords held in Brown (Anthony Joseph) [1994] 1 AC 212 that in the absence of good reason, the victim's consent is no defence to a charge under the Offences against the Person Act 1861. A number of cases have held what constitutes good reason, and what does not.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH. However psychological injury not amounting to recognizable psychiatric illness does not fall within the ambit of bodily harm for the purposes of the 1861 Act: R v [2006] EWCA Crim 1139. In R v Chan-Fook [1993] EWCA Crim 1 the court held that the phrase "actual bodily harm" can include psychiatric injury where this is proved by medical evidence but it did not include emotions, such as fear or panic, nor states of mind that were not themselves evidence of some identifiable clinical condition. Any allegation of actual bodily harm based on psychiatric injury, which was not admitted by the defence, should be supported by appropriate expert evidence. In the absence of such evidence, the question of whether an assault had occasioned psychiatric injury should not be left to the jury and there should be no reference to the victim's mental state following the assault unless it was relevant to some other aspect of the case.

Common assault or ABH: Decision on charge

Where assault involves battery that is more than transient or trifling (R v Donovan [1934] 2 KB 498), the prosecutor has to determine whether a charge of common assault or ABH is appropriate. There is an overlap, as recognised in DPP v Smith [2006] EWHC 94 (Admin).

A prosecutor should consider the following:

• The culpability of the offender, the injuries suffered by the complainant and the overall harm caused;
• Aggravating factors in the case;
• The likely sentence on conviction.

It is for the prosecutor to consider all the circumstances to arrive at a decision on the appropriate charge. Principles which may inform that decision are as follows:

• Battery should never be charged solely as a means of keeping the offence in the magistrates’ court.

• The fact that a case is 'evidence led' and the victim does not support a prosecution is not a reason to accept a lower charge,

• Where a charge of ABH has been preferred, the acceptance of a guilty plea to common assault will not be justified unless there is a significant change in circumstances that affects the seriousness of the offence Indeed, a charge of ABH should not be lessened to one of battery or vice-versa unless there has been a change of circumstances or the original charge selected was clearly wrong.
• In most cases it should be possible to determine the charge by concluding that the injuries caused are serious or less serious. Serious injuries include damaged teeth or bones, extensive and severe bruising, cuts requiring suturing and those that result in loss of consciousness. That the injuries required medical treatment, because they could not be treated by the victim alone and required medical assessment at least, may indicate a serious injury.
• Unless there are aggravating features, the appropriate charge will usually be contrary to section 39 where injuries amount to no more than the following:
  • Grazes;
  • Scratches;
  • Abrasions;
  • Minor bruising;
  • Swellings;
  • Reddening of the skin;
  • Superficial cuts.
• Whilst the level of charge will usually be indicated by the injuries sustained, ABH may be appropriate in the circumstances of the case including where aggravating features set out below are present:
  • the circumstances in which the assault took place are more serious e.g. repeated threats or assaults on the same complainant or significant violence
  • there has been punching, kicking or head-butting (as distinct from pushing or slapping which is likely to be dealt with as battery)
  • a weapon has been used
  • the victim is vulnerable or intimidated – see sections 16(2) and 17(2)Youth Justice and Criminal Evidence Act 1999. This may include: a pattern of similar offending against the victim, either in the past or in a number of offences to be charged; relevant previous convictions; whether the victim would likely be the beneficiary of Special Measures.
• Where the harm caused is serious, falling short of grievous bodily harm, ABH should be charged, even if that was not intended by the offender: see Abbas [2009] EWCA Crim 1386 where one punch resulted in the complainant hitting his head on the pavement, resulting in loss of consciousness. A relevant previous conviction and the commission of an offence on bail merited a sentence of 15 months’ imprisonment.

In Moore [2015] EWCA Crim 1621, the parties had a turbulent relationship. Offence 1: the appellant grabbed and bit her right wrist, causing indentation and bruising. Offence 2: the appellant put the electric window of their car up, trapping her arm and causing bruising. Offence 3: the appellant came into the room and punched her legs causing pain for some time afterwards. Offence 4: The appellant kicked and punched the complainant. He threatened to set fire to one of the dogs, resulting in her sitting in front of the dog's cage and throwing a glass of water over him. He grabbed a pair of scissors, cut her fringe, took her nail polish remover and threatened to pour it over the dog and set fire to the dog. The incidents were charged as ABH, but the prosecution accepted pleas to common assault as the complainant declined to give evidence. The Court expressed concern that its sentencing powers had become “inadequate” due to decisions taken by the prosecuting authority and observed that “repeated bullying violence against a single victim exploiting a relationship is serious, even where no serious physical injury occurs”.

R v Langford [2017] EWCA Crim 498 - The appellant grabbed the complainant’s neck with his hands, locked his arms and squeezed. He spat in her face. After he let go, he squeezed her neck again, so she was unable to speak. He swore and said, “I am going to kill you”. He seized her neck a third time. She had bruising around the neck and described the event as the ‘most frightening thing that had ever happened to her’. He pleaded guilty to ABH. Court found this was a case of greater harm because it involved a sustained or repeated assault on the victim; that the circumstances of the offence demonstrated an intention to commit more serious harm than resulted. The appellant had two previous convictions for common assault upon previous partners and he was in breach of a suspended sentence when he committed this offence. This episode between the appellant and the complainant was not an isolated one - there had been a background of threats of violence previously. For cases of this nature prosecutors should now refer to the Non-fatal Strangulation and Non-fatal Suffocation legal guidance before deciding the most appropriate to charge to be laid based on the circumstances of the case.

Common Assault, ABH, non-fatal strangulation or non-fatal suffocation: decision on charge

The Non-fatal Strangulation or Non-fatal Suffocation legal guidance provides definitions for both offences. Where cases have any evidence of non-fatal strangulation or non-fatal suffocation as a distinct offence or alongside other offending, prosecutors must refer to this guidance for consideration regarding the most appropriate charges to lay. The prosecutors review must make clear that this has been considered and the rationale for the charges chosen should be clearly recorded.

Unlawful wounding/inflicting GBH – s.20 and wounding/causing GBH with intent – s.18

The words "grievous bodily harm" bear their ordinary meaning of "really serious" harm: DPP v Smith [1960] 3 W.L.R. 546. Golding [2014] EWCA Crim 889 indicates that harm does not have to be either permanent or dangerous and that ultimately, the assessment of harm done is a matter for the jury, applying contemporary social standards. Further, there is no necessity for an assault to have been committed before there could be an infliction of GBH: Golding.

Bollom [2003] EWCA Crim 2846 is of assistance to prosecutors when determining the appropriate charge. It clarifies that injuries should be assessed with reference to the particular complainant. That person’s age, health or any other particular factors all fall for consideration. The court said, “To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.”

The guidance in cases such as Golding and Bollom should be applied when determining whether the injury amounts to ABH or GBH. Once again, the level of injury should usually indicate the appropriate level of charge but there may be some truly borderline cases where the factors above (outlined in relation to battery and ABH) are also relevant. Life-changing injuries should be charged as GBH. Just as the need for medical treatment may indicate ABH injuries, significant or sustained medical treatment (for instance, intensive care or a blood transfusion) may indicate GBH injuries, even if a full or relatively full recovery follows.

A "wound" means a break in the continuity of the whole skin – JJC (A Minor) v Eisenhower [1983] 3 WLR 537. The definition of wounding may encompass injuries that are relatively minor in nature, for example a small cut or laceration.

The “wounding” form of these offences should be reserved for those wounds considered to be really serious. However, it is appropriate to charge these offences when a wound is caused by a knife or other weapon, to reflect the seriousness.

An indictment alleging section 18 or section 20 should:

• Specify whether:
  • the allegation is based on the defendant committing an assault and/or wounding
  • the allegation is based on grievous bodily harm or a wound resulting:
  • this is good practice for clarity, and otherwise an alternative verdict may not be available: McCready [1978] 1 W.L.R. 1376 (section 18 can be committed without the need for a wound or an assault and so neither section 20 nor battery were available as alternative charges – but would have been had the section 18 pleaded that it was committed by wounding and/or an assault, and/or that the grievous bodily harm alleged was a really serious wound)
• Add a count contrary to section 20 if this alternative is to be left to the jury: Lahaye [2005] EWCA Crim 2847. This is good practice, urged by the Court of Appeal, even though this alternative is available by virtue of section 6(3) Criminal Law Act 1967; this alternative is available notwithstanding section 18 refers to “causing” and section 20 to “inflicting”: Mandair [1995] 1 A.C. 208
• Add a count contrary to section 47, which is also an alternative verdict: R v Wilson (Clarence George) [1983] 3 WLR. 686, if this is to be left to the jury.

The distinction between s18 and s20 is one of mens rea:

• The prosecution must prove under section 20 that either the defendant intended, or actually foresaw, that the act might cause some harm. It is not necessary to prove that the defendant either intended or foresaw that the unlawful act might cause physical harm of the gravity described in section 20. It is enough that the defendant foresaw some physical harm to some person, albeit of a minor character might result: R v Savage; DPP v Parmenter [1992] 1 AC 699.
• The prosecution must prove under section 18 that the defendant intended to wound and/or cause grievous bodily harm, and nothing less than an intention to produce that result, which in fact materialised, will suffice. A person ‘intends’ to cause a result if he/she consciously acts in order to bring it about. Factors that may indicate specific intent include a repeated or planned attack, deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack, making prior threats or using an offensive weapon against, or kicking, the victim’s head. The gravity of the injury may be the same for section 20 or 18 although the gravity may indicate the intention of the defendant.

The maximum sentence for section 20 is five years’ imprisonment. For section 18 it is life imprisonment. Intent may often be a trial issue where section 18 is charged, and will often rely on inference, but proof by inference is proof nonetheless, and where there is sufficient evidence for a jury to be sure of this intention this should be left to a jury.

Sentencing for sections 18, 20 and 47 will result in different likely sentences and so pleas to lesser offences should not be accepted unless there has been a change in circumstances or further evidence that changes the level of harm.

Cases involving the reckless or intentional transmission of sexual infection are particularly complex cases, and careful regard must be had to the separate legal guidance on Intentional or Reckless Sexual Transmission of Infection.

It is not possible to attempt to commit a section 20 GBH offence. An attempt to cause GBH should be charged as attempted section 18 because, as a matter of law, if suspects attempt to cause really serious harm they must necessarily intend to do so. Similarly, if suspects attempt to cause a serious wound of a kind that would clearly amount to GBH the offence would be attempted section 18.

It is appropriate to charge an attempted offence where the evidence demonstrates that the suspect intended to cause an injury that is substantially more serious than that (if any) which was in fact caused.

An offence contrary to section 18 may also be committed where the victim is wounded or caused grievous bodily harm in the course of the defendant resisting or preventing the lawful apprehension of any person. This offence may be used where the injuries amount to grievous bodily harm or injury but where the intention to resist or prevent a lawful apprehension is clearer than the intent to cause a wound or grievous bodily harm.

Assault with intent to resist arrest – s.38 OAPA 1861

This offence is committed when a person assaults another person with intent to resist arrest or prevent the lawful apprehension/detention of themselves or another for any offence. It is an either way offence, which carries a maximum penalty on indictment of two years’ imprisonment and/or a fine. A charge contrary to s.38 may properly be used for assaults on persons other than police officers, for example store detectives, who may be trying to apprehend or detain an offender.

Maximum sentence and racially and/or religiously aggravated assaults

Prosecutors should refer to the Racist and Religious Hate Crime legal guidance when considering offences classified as racist or religious hate crime. Annex A of the Racist and Religious Hate Crime guidance contains a table of legislation used to prosecute racist and religious crime and the maximum sentences for each offence.

Throwing corrosive fluid on a person – s.29 – acid attacks

Section 29 of the OAPA 1861: "Whosoever shall unlawfully and maliciously ... cast or throw ... or otherwise apply any corrosive fluid ... with intent ... to burn, maim, disfigure or disable any person, or to do some grievous bodily harm to any person, shall, whether any bodily injury be effected or not, be guilty of [an offence] ..."

The s.29 offence requires proof that the conduct was done "maliciously" and in addition, there must be proof of an intent to burn, maim, disfigure, or disable any person or to do some grievous bodily harm. However, where that is proven the offence is committed whether the intended injury to the victim occurs or not.

Where injury is caused, the likely appropriate charge will be contrary to section 18. Where injury is not caused, s.29 is likely to be the appropriate charge: see by way of illustration: R v Adrian Kuti (1994) 15 Cr. App. R. (S.) 260. For further indications of the seriousness with which this offending is treated, see: R v Riley [2017] EWCA Crim 243, R v Midmore [2017] EWCA Crim 533, R v Isaac [2016] EWCA Crim 1907.

Threats to kill – s.16 OAPA 1861

Threats can be calculated and premeditated or said in the heat of the moment. The defendant does not have to have the intention to kill but there has to be an intent that the person to whom the threat has been issued would fear it would be carried out. This can be a difficult offence to prove, and it should be reserved for the more serious cases. Where it is doubtful whether the threat carried the necessary intent a charge under s.4 or s.4A Public Order Act 1986 (see Public Order Offences incorporating the Charging Standard) or other offences such as at s.1 Malicious Communications Act 1988, s.127 Communications Act 2003 may be appropriate.

If the threat accompanies an assault, adding a charge of Threats to Kill will normally be unnecessary. There may be exceptional cases where the severity of the threat is not matched by the physical injury sustained in the assault. The offence will be particularly appropriate if there has been no assault or if an assault has been prevented, yet the person to whom the threat was made was given real cause to believe it would be carried out.

Other OAPA 1861 Offences

Whilst the Charging Standard provides guidance on a range of frequently experienced offences against the person, there are also other offences that may be relevant, including the following:

• Attempting to choke, suffocate or strangle with intent to enable the commission of an indictable offence, contrary to s.21 OAPA 1861 - prosecutors should refer to the Non-fatal Strangulation and Non-fatal Suffocation legal guidance for advice on when this charge should be considered.
• Causing to be taken or administering a drug with intent to enable the commission of an indictable offence, contrary to s.22 OAPA 1861
• Administering poison or noxious thing thereby endangering life or inflicting GBH, contrary to s.23 OAPA 1861.
• Administering poison or noxious thing with intent to injure, aggrieve or annoy, contrary to s.24 OAPA 1861. R v Veyse [2019] EWCA Crim 1332 provides guidance on charging and on what may amount to a “noxious substance”. Where an issue arises as to whether a substance is a noxious thing for the purpose of section 24 of the 1861 Act, it will be for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be properly so regarded, it will be a matter for the jury whether they are satisfied that it was a noxious thing within that definition. In Veysey’s case, the judge below had been entitled to find that a cupful of human urine, from an unknown source, thrown at the face of a victim was capable of being regarded as noxious. Actual or potential injury / harm is likely to indicate that a substance is noxious but that is not an exhaustive definition and it may extent on the facts to any hurtful or unwholesome substance.
• Causing bodily injury by explosives, contrary to s.28 OAPA 1861. Unlike offences under the Explosive Substances Act 1883, causing bodily injury contrary to s.28 OAPA 1861 does not require the consent of the Attorney General. For guidance as to the Explosive Substances Act, refer to Explosives, in the Legal Guidance.

Assault on an Immigration Officer

Section 22 of the UK Borders Act 2007 makes it an offence to assault an immigration officer. An immigration officer is defined within s.1 of the Act as someone “designated” by the Secretary of State. The offence is summary only and carries a maximum of 6 months’ imprisonment.

This offence is not superseded by the new offence at in section 1 of the 2018 Act as most immigration officers are not covered by the definition of an emergency worker at section 3. The only members of the immigration enforcement/border force workforce who are covered are:

• those working in some detention roles and therefore covered by the ‘custody officer’ definition
• those (very limited) number who exercise police powers, and who are therefore covered by the policing definition when exercising these powers.

The section 1 offence in the 2018 Act should be prosecuted if prosecutors establish that the immigration officer falls within the definition of an emergency worker.

Sentencing guidelines for assault on a police constable in the execution of his duty apply to the s.22 offence.

False imprisonment

False imprisonment is a common law offence involving the unlawful and intentional or reckless detention of the victim. An act of false imprisonment may amount in itself to an assault. If a separate assault accompanies the detention this should be reflected in the particulars of the indictment.

If the detention was for the purpose of committing another indictable offence, and such an offence was committed, a count for the substantive offence will usually be enough. Where the detention was for a period of several hours, or days, then it will be proper to reflect the unlawful detention with a count for false imprisonment.

See:

• Cooksey [2019] EWCA Crim 1410 where false imprisonment occurred within the context of coercive and controlling behaviour in a domestic setting.
• Ward [2018] EWCA Crim 414 where the court identified aggravating factors for the particular case; gratuitous degradation of the victim; abuse of power over the victim in his own home; previous violence or threats towards the victim in the context of a series of offences; threats made to stop the victim reporting the offending.

Ill-treatment or neglect, contrary to section 44 of the Mental Capacity Act 2005 (MCA)

It is an offence for a person to ill-treat or neglect a person who lacks mental capacity. The offence is either way and carries a maximum penalty on indictment of 5 years’ imprisonment and/or a fine.

A person lacks mental capacity if at the material time, he/she is unable to make a decision for himself/herself because of an impairment of, or a disturbance in the functioning of, the mind or brain (s.2(1) MCA).

It is immaterial if the impairment or disturbance is permanent or temporary (s.2(2) MCA). A lack of capacity cannot be established merely by reference by a person’s age or appearance, or by a condition, or an aspect of behaviour, which might lead others to make unjustified assumptions about capacity (s.2(3) MCA).

The question of whether a person lacks capacity within the meaning of the Act is to be decided on the balance of probabilities (s.2(4) MCA). Accordingly, there must be evidence to support the fact that the person lacked mental capacity at the time the offence was committed.

The offence is committed when a person ill-treats or wilfully neglects another who lacks, or whom he/she reasonably believes to lack, mental capacity and that person:

• has the care of that other person; or
• is the donee of a lasting power of attorney, or an enduring power of attorney (for definition, see Schedule 4 of the Act) created by the person who lacks capacity; or
• is a deputy appointed by the court for the person who lacks capacity.

Even if the victim has capacity, it will still be an offence if the person who had the care of him/her reasonably believed he/she lacked capacity and ill-treated or neglected him/her. ‘Reasonable belief’ means that in all the circumstances, a reasonable person would believe that the victim lacked capacity.

The Act applies to everyone who looks after or cares for someone who lacks mental capacity. This includes both those who have the day to day care of that person as well as those who only have the very short-term care, whether they are family carers, professional carers or other carers.

The Act does not define ‘ill-treatment’ and ‘wilful neglect’, therefore these concepts should be given their ordinary meaning. Offences of ill-treatment and wilful neglect are continuing offences (R v Hayles [1969] 1 Q.B. 364, 53 Cr. App. R. 36, CA).

For the indictment, ‘ill treatment’ and ‘wilful neglect’ should feature in separate counts. Also see the Ill-treatment or Wilful Neglect Offences - Sections 20 to 25 of the Criminal Justice and Courts Act 2015 legal guidance.

For offences against “older people”, please refer to the CPS guidance Older People: Prosecuting Crimes against, in the Legal Guidance.

Attempted murder, contrary to section 1(1) Criminal Attempts Act 1981

Prosecutors should consider the Homicide: Murder and Manslaughter legal guidance when considering an offence of attempted murder.

When considering the choice of charge, Prosecutors should consider what alternative verdicts may be open to a jury on an allegation of attempted murder. Section 6(3) of the Criminal Law Act 1967 applies. Prosecutors should note the judgement in R v Morrison [2003] 1 WLR 1859, in which, on a single count of attempted murder, the Court of Appeal held that the trial judge had been right to leave to the jury an alternative count of attempting to cause GBH with intent, because a defendant could not intend to kill without also intending to cause GBH. If an alternative count can be left to the jury, prosecutors should not normally add it to the indictment, but should draw to the attention of counsel that the alternative count may be available.

It should be borne in mind that the actions of the defendant must be more than merely preparatory and although words and threats may provide prima facie evidence of an intention to kill, there may be doubt as to whether they were uttered seriously or were mere bravado.

Evidence of the following factors may assist in proving the intention to kill:

• calculated planning;
• selection and use of a deadly weapon;
• threats;
• severity or duration of attack;
• relevant admissions in interview.

Child abuse (non-sexual)

Prosecutors should consider the Child Abuse (non-sexual) legal guidance when considering offences of child abuse. Prosecutors should be aware of the specific offences that could apply to incidents involving children including child neglect contrary to section 1(1) Children and Young Persons Act 1933 and causing or allowing the death a child or vulnerable adult contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004).

Reasonable punishment of a child

Charging responsibility

The Director’s Guidance on Charging sets out a division of charging responsibility. If the allegation involves domestic abuse, there should be consideration of the Domestic Abuse legal guidance. The Out-of-Court Disposals in Hate Crime and Domestic Abuse Cases guidance confirms that out-of-court-disposals are available for use by the police in relation to Domestic Abuse cases in the same way as any other type of offence and there is no requirement for the police to refer these cases to the CPS for approval of an out-of-court disposal unless the out-of-Court disposal is a conditional caution. Reference should be made to the Adult and Youth Conditional Caution guidance.

Cases of common assault or battery of a child by a person in loco parentis (anyone who is assuming the role and responsibility of a parent), that are not classified as domestic abuse, do not have to be referred to a prosecutor for a conditional caution authorisation or decision on charge.

Selection of charges

The vulnerability of the victim, such as being a child assaulted by an adult, should be treated as an aggravating factor when deciding the appropriate charge. When considering appropriate charges prosecutors should have regard to section 58 of the Children Act 2004 and paragraph 8 of the Review of this section completed by the Department for Children, Schools and Families in 2007. Injuries that would usually lead to a charge of “common assault” should be more appropriately charged as “assault occasioning actual bodily harm” under section 47 of the Offences against the Person Act 1861 (on which charge the defence of reasonable punishment is not available) unless the injury amounted to no more than temporary reddening of the skin and the injury is transient and trifling.

Law in Wales

The Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 came into force on 21 March 2022 and it creates a divergence between the law in England and the law in Wales. The Act abolishes the common law defence of reasonable punishment in Wales and amends section 58 of the Children Act 2004 so that it only applies to England. Section 1(2) and section 1(3) of the Children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020 state that corporal punishment of a child taking place in Wales cannot be justified in any civil or criminal proceedings on the ground that it constituted reasonable punishment or any other rule of the common law. Section 1(4) defines corporal punishment as any battery carried out as punishment.

Investigators must ensure that they have sufficient evidence to determine where the incident occurred so that they can decide which legislation to apply. If the incident occurred in Wales on or after 21 March 2022 then the defence of reasonable punishment of a child is no longer available to an allegation of common assault or battery. The defence will continue to be unavailable in relation to allegations contrary to sections 18, 20 and 47 of the Offences Against the Person Act 1861 and section 1 of the Children and Young Persons Act 1933.

If there is sufficient evidence to provide a realistic prospect of conviction it must be determined whether a prosecution is in the public interest. There should be consideration as to whether a prosecution is a proportionate response in the circumstances of each case. An out of Court disposal may be appropriate depending on the facts of the case and the principles in the ‘Out of Court’ disposals section within the Code for Crown Prosecutors should be followed. As outlined above there is no requirement for the police to refer these cases to the CPS for approval of an out-of-court disposal.

Further reading;

• Explanatory Memorandum: Children (Abolition of Defence of Reasonable Punishment) (Wales) Act
• Ending physical punishment in Wales | GOV.WALES
• Stopio Cosbi Corfforol yng Nghymru: taflen wybodaeth ar gyfer Gwasanaeth Erlyn y Goron | LLYW.CYMRU

Law in England

Section 58 of the Children Act 2004 continues to apply in England. This section states that reasonable punishment may only be used as a defence to an allegation of common assault or battery. Section 58(2) states that reasonable punishment is not a defence to offences under section 47, section 20, and section 18 of the Offences Against the Person Act 1861 or to section 1 of the Children and Young Persons Act 1933.

If a prosecutor determines that the correct change is common assault or battery, then the next determination is whether the punishment inflicted was moderate and reasonable. The Court of Appeal in the case of R v H [2001] 2 FLR 431 adopted the guidance set out in the case of A v UK (1999) 27 EHRR 611 and accordingly extended the factors to be taken into consideration when considering reasonableness. The following factors will assist in determining whether the punishment in question was reasonable and moderate. 

• the nature and context of the defendant's behaviour;
• the duration of that behaviour;
• the physical and mental consequences in respect of the child;
• the age and personal characteristics of the child;
• the reasons given by the defendant for administering the punishment.

Third party material

Prosecutors must ensure that all reasonable lines of enquiry have been completed. In these cases, this may include the need to obtain material from third parties such as medical professionals, educational establishments and/or local authorities. Third party material may strengthen the evidence, for example, educational records may hold evidence of first complaint. Third party material may also point away from a suspect. Prosecutors must ensure that there is a clear, articulated reason for obtaining third party material and they should ensure that no more material than is necessary is obtained. Prosecutors should also consider any risk assessments completed by the police or local authority. See Chapter 5 of the Disclosure Manual for further details on reasonable lines of enquiry and third-party material including information on applying for a witness summons.

The duty to investigate and safeguarding

Police have general powers to investigate criminal offending. A local authority’s duty is to investigate where it has reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm - section 47 Children Act 1989. It must consult a relevant authority in which the child ordinarily resides, who may undertake the necessary enquiries in their place - section 47(12). Part V Children Act 1989 sets out a range of local authority powers.

Police and local authorities in England and Wales must discharge their functions having regard to the need to safeguard and promote the welfare of children - Section 11 Children Act 2004. See also section 130 Social Services and Well-being (Wales) Act 2014 (duty to report children at risk; section 21 (local authority duty to assess the needs of a child for care and support) and section 25 Children Act 2004 (requirement for police and local authorities in Wales to co-operate to protect children experiencing, or are at risk of, abuse).

Education Providers

Section 548 of the Education Act 1996 states that there is no right for a member of staff within an educational establishment to give corporal punishment to a child. Corporal punishment is defined as battery, but it will not be considered corporal punishment if it was done to avert an immediate danger of personal injury or danger to property. Members of staff also have the right under section 93 of the Education and Inspections Act 2006 to use reasonable force to prevent a pupil from committing an offence, causing personal injury, damaging property or doing something that prejudices discipline at the school.

Assault on a child should be flagged as "child abuse" and reference must be made to the Child Abuse (non-sexual) legal guidance when considering these cases.