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The Laws of Violence

The Laws of Violence

396 J Accid Emerg Med 2000;17:396–399 J Accid Emerg Med: first published as 10.1136/emj.17.6.396 on 1 November 2000. Downloaded from

REVIEW

The laws of violence

John Bache

Abstract Which of these choices is followed by the Working in an accident and emergency police depends upon a number of factors, such (A&E) department inevitably involves as the nature and seriousness of the oVence; dealing with the consequences of violence, the nature of any injuries; the level of tolerance; and a knowledge of the laws of violence is a the circumstances of an ; the degree of useful adjunct to the clinical practice of intent; the strength of the ; and the A&E medicine. The police and the Crown prospects of a successful conviction. The Prosecution Service decide whether or not victim of a often wishes the police and to charge a suspect, and which charge is CPS to take the matter to court, but the police appropriate. All criminal oVences are ini- and CPS may feel that it is not in the public tially considered in the magistrates’ court interest to charge the suspect. but the more serious oVences may be The CPS is composed of qualified lawyers committed to crown court. Specific of- or, recently, designated case workers. In the fences include , actual magistrates’ court, the CPS presents the case , , and for the Crown. In the crown court, the case is grievous bodily harm with intent. If the presented by a barrister instructed by the CPS, defendant is found guilty, an appropriate or by a CPS higher court advocate. sentence is imposed. In making a decision on whether or not to (J Accid Emerg Med 2000;17:396–399) prosecute, the CPS firstly has to consider Keywords: laws; violence; assault whether the case will pass the evidential test, and then whether it will pass the public interest test. If the case does not pass the evidential Members of the legal profession are often test, it may not proceed, regardless of how bemused by the jargon and detailed terminolo- important or serious it may be. For the eviden- gies used by members of the medical profes- tial test, there must be enough admissible

sion. The reverse is also true. Those working in evidence to provide a realistic prospect of con- http://emj.bmj.com/ accident and emergency (A&E) departments viction: this means that a court, properly deal with the results of criminal violence, directed in accordance with the law, is more sometimes in their own departments, with likely than not to convict on that evidence. depressing frequency. The purpose of this So far as the public interest test is con- paper is to explain some of the basic concepts cerned, there is no rule of law that demands the of the in England, Wales and automatic prosecution of an oVender, even if Northern Ireland, particularly concentrating the evidential test is met, and a prosecution on aspects that are likely to involve staV in A&E only takes place if the public interest requires on September 27, 2021 by guest. Protected copyright. departments. Scottish law diVers in a number it. The more serious the oVence, the more of details. likely it is that a prosecution will be needed in the public interest. The CPS is the ultimate The criminal process decision maker. Some common public interest When a crime is committed and a suspect is factors that make a prosecution more likely apprehended, the police have a number of include the following: a conviction is likely to choices. They can take no further action and result in a significant sentence; a weapon was release the defendant because of insuYcient used or violence was threatened during the evidence. They can release the defendant on commission of the oVence; the oVence was police bail while they make further enquiries. committed against a person serving the public, They can report the matter to the Crown Pros- such as a police oYcer, a prison oYcer, or a ecution Service (CPS), who can decide what nurse; the defendant was in a position of Leighton Hospital, further action is appropriate. A police oYcer of authority or trust; there is evidence that the Crewe, Cheshire the rank of inspector or above can caution the oVence was premeditated; the victim of the CW1 4QJ oVender, if the oVence is admitted. The police oVence was vulnerable. Some common public interest factors that make a prosecution less Correspondence to: can charge the defendant with the of Mr Bache, Consultant in bringing him before a court, and can grant likely include the following: the court is likely Accident and Emergency conditional or unconditional bail. The appro- to impose a very small or nominal penalty; the Medicine priate charge depends upon the nature of the oVence was committed as a result of a genuine ([email protected]) injuries, the circumstances of the assault and mistake or misunderstanding; the loss or harm Accepted 29 February 2000 the degree of intent. can reasonably be described as minor; the

www.jnlaem.com The laws of violence 397 J Accid Emerg Med: first published as 10.1136/emj.17.6.396 on 1 November 2000. Downloaded from

Magistrates' court If the case is to be heard in the magistrates’ court, the defendant is asked whether they plead guilty or not guilty. If there is a plea of guilty, the magistrates will sentence the defend- ant, possibly after adjourning the case while a pre-sentence report (PSR) is prepared. If there is a plea of not guilty, the matter is adjourned Either way offence for trial in the magistrates’ court, before three lay magistrates, or a stipendiary magistrate sit- ting alone. If the defendant is found guilty, the magistrates will proceed to sentence the defendant, again possibly adjourning the case for a PSR. Committal Committal Very serious oVences, such as and , are indictable only. The magistrates will decide whether there is a case to answer and, if there is, they will then commit the defendant to the crown court. Defendants charged with indictable oVences Magistrates' court Crown court and either way oVences that are to be dealt with in the crown court are asked in the crown court whether they plead guilty or not guilty. If they plead guilty, the judge will proceed to sen- tence. If they plead not guilty, a trial is held before a judge and . If the jury find the Pleads not guilty Pleads guilty Pleads not guilty defendant guilty, the judge will pass sentence. Whether or not the judge requires a PSR before passing sentence depends upon the seri- ousness of the charge and the likely sentence. When the trial is in the magistrates’ court, the magistrates will not be aware of any of the Trial Sentence Trial defendant’s previous convictions unless and until the defendant is found guilty, when the magistrates will be provided with a record of previous convictions before proceeding to sen- tence. In the crown court, the judge will be aware of previous convictions but the jury will Not guilty Guilty Not guilty not normally be aware of previous convictions, unless the judge gives leave for cross examina- Figure 1 Progress of a case through the criminal justice system. tion on previous convictions. In the case of the http://emj.bmj.com/ defendant has put right the loss or harm that magistrates’ court, the magistrates may find it was caused. necessary to refer the case to the judge in the The burden of proof required in a criminal crown court for sentence, if they consider their court is “beyond all reasonable doubt”, in con- powers of sentence are insuYcient, once they tradistinction to “on the balance of probabili- become aware of the previous convictions of ties”, which is the burden of proof required in the defendant. a civil court. Victims of a crime and, indeed, other [If the police and CPS decide not to witnesses may be understandably apprehensive on September 27, 2021 by guest. Protected copyright. proceed, a private prosecution is possible: the of giving evidence in court. StaV of the victim aggrieved party pursues the matter himself. support scheme are trained in counselling and will assist victims, including accompanying Private prosecutions can be extremely expen- them to court and explaining court procedure sive and are very rarely used.] to them if necessary. The witness liaison All criminal oVences that are taken to court service is operated by the police but run by are initially dealt with by the magistrates civilians: if witnesses are required in a trial, the (justices of the peace). These are usually lay witness liaison service will contact them, men and women who have some judicial train- explain what is required, check availability, ing but depend upon the clerk of the court, arrange suitable dates, expense claim forms, who is legally qualified, for advice on points of etc; they liaise between the police and the CPS. law. There are also a number of stipendiary magistrates, who are professional lawyers. Specific oVences Criminal oVences are divisible into three As mentioned above, criminal oVences are groups: summary only (the relatively minor divisible into three groups: summary only oVences, which are triable only in the magis- oVences, either way oVences, and indictable trates’ court); indictable only (the most serious only oVences. Certain oVences may be particu- oVences, which are triable only by a judge and larly relevant to those working in A&E depart- jury in the crown court); and either way ments. oVences (those of intermediate seriousness, Summary only oVences include assaulting a which can be tried either in the magistrates’ police oYcer in the execution of his duty; com- court or in the crown court) (fig 1). mon assault (section 39); disorderly conduct,

www.jnlaem.com 398 Bache J Accid Emerg Med: first published as 10.1136/emj.17.6.396 on 1 November 2000. Downloaded from

likely to cause harassment, alarm or distress; Thus, although any injury can be classified as drunkenness; obstructing or resisting a police actual bodily harm, a charge of common oYcer in the execution of his duty; possession assault is appropriate if the injuries amount to of an article with a blade or point in a public no more than grazes, scratches, abrasions, place; threatening behaviour. minor bruising, swellings, reddening of the Either way oVences include actual bodily skin, superficial lacerations, or a “black eye”. harm (section 47); aVray; criminal damage; The following injuries are examples of those grievous bodily harm (section 20); possession that should normally be prosecuted under sec- of an oVensive weapon; threatening to destroy tion 47: loss or breaking of a tooth or teeth; or damage property; . temporary loss of sensory functions, which Indictable only oVences include attempted may include loss of consciousness; extensive or murder; manslaughter; murder; rape; wound- multiple bruising; displaced fracture of the ing with intent to do grievous bodily harm, or nasal bones; minor fractures; minor but not grievous bodily harm with intent to do merely superficial lacerations of a type prob- grievous bodily harm (section 18). ably requiring medical treatment, such as The oVences of violence that are most likely sutures; psychiatric injury (supported by ap- to involve those working in A&E departments propriate expert evidence) that is more than are common assault (section 39); actual bodily fear, distress or panic. harm (section 47); grievous bodily harm/ It is always necessary to consider the injuries malicious wounding (section 20); and wound- first and the degree of injury will usually deter- ing or causing grievous bodily harm with intent mine whether the appropriate charge is section (section 18). These are described below. 39 or section 47. There will be borderline Assault need not necessarily involve actual cases, such as when the victim has sustained an physical contact: it can simply be a threat. undisplaced nasal fracture. When the injuries amount to no more than those described above CRIMINAL JUSTICE ACT 1988, SECTION 39: as being appropriate for a charge of common COMMON ASSAULT assault, a decision to charge the defendant with An oVence of common assault is committed actual bodily harm may be justified in excep- when a person either or inflicts a tional circumstances, or when the maximum upon another person. An assault is available sentence in the magistrates’ court committed when a person intentionally or would be inadequate. recklessly causes another person to anticipate In deciding which charge is appropriate, the with fear the immediate infliction of unlawful degree of injury is important (common assault force; an assault is an unlawful personal attack, is less than actual bodily harm) and so are the even if only with menacing words. A battery is attendant circumstances of the assault. committed when a person intentionally or recklessly inflicts unlawful force upon another OFFENCES AGAINST THE PERSON ACT 1861, person; a battery is the infliction of blows, or of SECTION 20: UNLAWFULLY AND MALICIOUSLY any menacing touch to the clothes or person. INFLICTING GRIEVOUS BODILY HARM; Common assault is triable only by magistrates. UNLAWFULLY AND MALICIOUSLY WOUNDING The maximum penalty is a fine of £5000 or six This is again triable either way. Again, the http://emj.bmj.com/ months imprisonment. The magistrates can maximum penalty in the magistrates’ court is a award compensation up to £5000. Because it is fine of £5000 or six months imprisonment, a summary only oVence, the defendant cannot and the maximum penalty in the crown court is go to crown court and then plead guilty and be five years imprisonment and an unlimited fine. given a conditional discharge. Therefore, a Again, the magistrates can award compensa- charge of common assault avoids the time and tion up to £5000; the judge can award unlim-

expense of preparing a committal file. A ited compensation. There is no intent in a sec- on September 27, 2021 by guest. Protected copyright. threatening gesture is suYcient to warrant a tion 20 charge: it is reckless. Grievous bodily charge of common assault. harm means “really serious bodily harm”, and it is undesirable to any further OFFENCES AGAINST THE PERSON ACT 1861, definition of it. The injuries caused do not have SECTION 47: ASSAULT OCCASIONING ACTUAL to be permanent or dangerous but they have to BODILY HARM be more severe than actual bodily harm. This is triable either way. The maximum Wounding is defined as “a break in the penalty in the magistrates’ court is a fine of continuity of the whole skin”. £5000 or six months imprisonment. The maximum penalty in the crown court is five OFFENCES AGAINST THE PERSON ACT 1861, years imprisonment and an unlimited fine. The SECTION 18: WOUNDING OR CAUSING GRIEVOUS magistrates can award compensation up to BODILY HARM WITH INTENT £5000; the judge can award unlimited com- This is indictable only. The maximum penalty pensation. is and the judge can award The only factor that distinguishes a charge of unlimited compensation. The injuries are the common assault from a charge of assault occa- same as for a section 20 charge but the diVer- sioning actual bodily harm is the degree of ence is that there is intent. A weapon may be injury that results. When battery results in used (but not necessarily). The prosecution injury, a choice of charges is available. The must prove the defendant either intended CPS recognises that there will be factors that doing really serious harm, or intended resisting may properly lead to a decision not to prefer or lawful apprehension. The diVerence between a continue with the gravest possible charge. section 20 charge and a section 18 charge is

www.jnlaem.com The laws of violence 399 J Accid Emerg Med: first published as 10.1136/emj.17.6.396 on 1 November 2000. Downloaded from

that there is intent with section 18: there is was serving the public; a weapon was used or “ aforethought”. For example, if a brandished; the oVence was committed in a defendant hits his victim with a stick during the busy public place or some other relevant loca- course of an argument, he is likely to be tion; there was gross disregard for police charged with a section 20. If he has an authority; the victim was specifically targeted; argument, goes away, finds a stick, and returns people were put in fear; oVensive language or to hit his victim with it, there is obvious intent behaviour was used; the oVence was commit- and a section 18 charge is likely. However, in ted on bail; the oVender had previous convic- some cases the defendant will be charged with tions and failures to respond to previous a section 18 because of the severity of the sentences. attack, even if there was no premeditation. There may also be mitigating factors, such as Whether to charge the defendant with com- the oVence was committed on impulse; there mon assault, actual bodily harm or grievous were only minor injuries; there was a single bodily harm depends largely upon the nature blow; the incident was trivial; the incident was of the injuries. The CPS is often encouraged to of short duration; there was provocation; the use common assault rather than actual bodily oVender was induced by others; the oVender harm, to avoid the necessity of preparing a did not initiate the situation, acted out of committal file. The charge can always be genuine fear, and stopped as soon as the police reduced to a lesser charge at a later date. The arrived; the oVender was acting alone; there maximum penalty is identical for common was no evidence of premeditation; there was no assault, actual bodily harm and grievous bodily significant disturbance. Mitigation may also harm in the magistrates’ court and for actual result from the oVender’s age; health; coopera- bodily harm and grievous bodily harm in the tion with the police; voluntary compensation; crown court. and remorse. The oVender’s income will also be taken into account. Sentencing Sentences available to judges and magistrates include absolute discharge; conditional dis- Compensation charge; fine; attendance centre order; proba- Magistrates have powers to award compensa- tion order; supervision order; community serv- tion for personal injury, loss or damage up to a ice order; combination order (probation plus total of £5000 for each oVence. Judges have community service); custody. These sentences unlimited powers of compensation. Compen- can be combined with compensation orders, sation can be used as a sentence in its own orders of forfeiture, and costs. right. Each oVence carries a maximum sentence, The criminal injuries compensation scheme which may vary according to whether it is dealt is intended to compensate victims of violent with in the magistrates’ court or the crown crime and particularly those who are seriously court. Obviously the judge has far greater sen- injured. Courts are encouraged to order tencing powers than the magistrates. Recently, oVenders to compensate the victim whether or in some cases in which a defendant has not the injury comes within the scope of the previous convictions for serious violence, the criminal injuries compensation scheme, to http://emj.bmj.com/ judge is obliged to sentence the defendant to bring home to oVenders the personal conse- life imprisonment. quences of their actions. In determining a suitable sentence, the judge I would like to acknowledge the invaluable assistance of the fol- or the magistrates will consider aggravating lowing in the preparation of this paper: His Honour Judge D factors, such as racial motivation; deliberate Elgan Edwards; Mr Ian Holding, Deputy Chief Constable of Cheshire; Detective Chief Superintendent Laurence Mellor; Mr kicking or biting; extensive injuries; group Richard Holland, Barrister, Legal Manager, South Cheshire Magistrates’ Courts. action; the oVender was in a position of on September 27, 2021 by guest. Protected copyright. authority; the oVence was premeditated; the Funding: none. victim was particularly vulnerable; the victim Conflicts of interest: none.

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