What is the difference between common assault and ABH?
Common assault is causing (either intentionally or recklessly) someone to suffer unlawful force or expect that it is about to be inflicted upon them. It covers a wide range of actions and threatened actions, such as battery, spitting, verbal abuse and brandishing a weapon.
Actual bodily harm (ABH) is a charge for cases where actual injuries have been inflicted. The injuries will be more serious than those required for a charge of battery, which could be minimal and treatable by the injured party themselves.
Then there is the charge of grievous bodily harm (GBH), which involves much more serious injuries, such as lacerations, fractures and broken bones.
What are the possible consequences of a conviction under UK law?
- A maximum penalty of 26 months in prison if found guilty of category 1 common assault
- A high level community order if found guilty of category 2 common assault
- A fine if found guilty of category 3 common assault
If you are found guilty of common assault, the consequences are severe. Nick Titchener, director and solicitor advocate at Lawtons Solicitors, discusses this complex area of the law and its implications.
Common assault is a criminal offence under UK law. The offence is categorised into three levels:
- Category 1 – the most severe degree of common assault. Maximum sentence of 26 months in prison
- Category 2 – a medium degree of common assault. Maximum penalty of a high level community order
- Category 3 – the least severe degree of common assault. Maximum sentence is typically a fine
If you are found guilty of committing criminal assault, the sentence will be decided based on:
- The level of culpability
- The level of harm
Criminal accusations of any type are unnerving, extremely stressful and often demeaning. Accused individuals are often fearing the worst given the outcomes that can happen, even when the factors of a case mean that a strong defence case can be compiled with expert advice.
It’s important to know the consequences of assault charges in case a person has to plead guilty or is found guilty. To do this it’s necessary to understand the potential factors that could reduce blame and ultimately help the individual to achieve a fair, just and positive outcome.
What is common assault (Section 39, Criminal Justice Act 1988) in the UK?
Assault is a term used to describe any offence committed against another person. It can be dealt with in either the Crown Court or Magistrates’ Court, depending on the title and severity of the offence in question.
Common assault is an offence which is committed when:
- A person assaults another person
- A person commits an act of battery (the intentional and reckless use of unlawful force against another)
What are the sentencing guidelines for common assault according to UK law?
Sentences for assault are highly variable, even within specific offence titles. An act of common assault could be punishable by a nominal fine, or up to a maximum sentence of 6 months in custody. Crown Court judges have the power to issue more severe consequences, upwards of the 6-month maximum term.
Unless a common assault offence is jointly charged alongside a more serious case or charge, it must be dealt with in the Magistrates’ Court unless in itself it is deemed to be racially aggravated. As such, it is tried as a summary-only offence, meaning it will be tried at the Magistrates’ Court.
However, where it is alleged that the offence was racially or religiously aggravated, then it can be heard at either the Magistrates’ Court or the Crown Court.
Assault by beating (Section 39) – what are the sentencing guidelines in the UK?
Assault by beating refers to common assault involving physical battery. Sentencing guidelines for assault by beating can vary, but, the maximum penalty for assault by beating is 6 months in prison. New sentencing guidelines were released in May 2021.
Which factors increase culpability for common assault?
When passing sentence, the courts look at two main factors – harm and culpability – when determining the range of sentence and what the ‘starting point’ is. The courts apply these factors in accordance with the guidelines that they are given.
When courts are seeking to assess the culpability of an accused individual, they are considering the level of blame of the offender during the offence itself. A similar approach is adopted by the courts when they are considering the harm that is caused. Harm is reviewed in terms of the presence of physical injuries and/or psychological impact on the complainant.
Characteristics that will indicate a higher level of culpability include:
- Serious injury (or fear of injury) was sustained by the victim
- The victim was vulnerable for personal reasons and/or deliberately targeted
- The act was sustained over an excessive period of time, or repeated on the same victim
- The assault was motivated by discrimination – for example disability, sexuality, age or ethnicity
- The accused threatened the use of a weapon
What are the punishments & likely outcomes for common assault in the UK?
Once the offence of common assault is categorised by the level of culpability and harm, then a more specific starting point for sentencing category can be determined:
- Category 1 offences of common assault have a starting point of a high-level community order but can increase to a 26-month custodial sentence in the case of racially-aggravated assault
- Category 2 offences have a starting point of a medium level community order, but no more punishment than a high-level community order is to be expected
- Category 3 offences are usually sentenced by way of a fine but can be discharged completely without further consequences when a low level of culpability is found
The sentencing ranges that are applied are subject to change and sentencing becomes tailored to the circumstances of the case and also those of the individual. If a person has previous criminal convictions, this in itself can move an offence from one category to another. Similarly, a timely guilty plea can on occasions have a decisive effect in terms of reducing an offence category’s seriousness.
The key is to ensure that an expert in assault cases is advising the accused from the outset, to ensure that the right points are made and the best outcome achieved.
How do previous offences affect the chances of being convicted?
Aside from potentially making any new offence more serious and moving it into a higher category for sentencing, previous offences can also contribute to bad character evidence being used in a court case.
Usually, however, the prosecution would have to apply to the judge for permission to introduce previous convictions into contested proceedings. According to the Criminal Justice Act 2003, ‘bad character’ could include ‘evidence of, or of a disposition towards, misconduct’.
Misconduct is further defined as ‘the commission of an offence or of other reprehensible behaviour’. Belonging to a violent gang, and drinking to excess and taking illegal drugs have previously been found by courts to constitute such behaviour in certain scenarios..
What are the prison sentences for assault occasioning actual bodily harm (ABH)?
Assault occasioning actual bodily harm – or ABH – can be tried at either the Magistrates’ Court or Crown Court. Like common assault charges, if the offence is found to be racially or religiously motivated, the Sentencing Guidelines Council suggests that more severe punishments are appropriate.
Which factors increase culpability for ABH?
For sentencing purposes, ABH charges are placed within one of three categories. The decision to place these is dictated by the amount of harm caused and the level of culpability, much like with cases of common assault.
Category 1 describes acts with the highest amount of harm and culpability. Factors which illustrate a higher level of culpability include:
- The existence and evidence of a serious injury that was sustained as a result of the assault. This could include the transmission of disease
- Evidence that the attack was sustained or repeated over an excessive period of time
- Evidence of premeditation, planning or targeting of a specific victim
- Evidence suggesting that the intention of the accused individual was more than the injury inflicted
- Evidence that a weapon or the equivalent of a weapon, such as a bottle or shod foot, was used in the assault
What are the sentencing ranges & guidelines for ABH in the UK?
- Category 1 ABH offences have a starting point of an 18 month custodial prison sentence, although this can increase to 3 years’ custody
- Category 2 offences have a starting point of 26 weeks’ custody but can increase up to a custodial sentence of 51 weeks
- Category 3 offences are punished by way of fine or community order, with the starting point being a medium level community order
Within the above sentencing ranges, the sentence itself can vary greatly. The courts look closely at the specific factors of the case and the individuals involved and on occasion, the conduct of the victim.
One factor that is relevant to sentencing guidelines for ABH is whether the victim provoked the assault or whether the case was self-defence. It could be that the offender was originally acting in self–defence but went beyond that which would be considered reasonable in his or her response and would, therefore, no longer be considered a self defence case.
Can the length of potential sentences be reduced?
If you are charged with an assault charge and are facing court proceedings, then you should appoint an expert criminal defence solicitor who will review the facts of your case which may help you achieve a positive outcome, picking out key elements to highlight and bring to the court’s attention.
Knowledge and experience of how courts apply these characteristics to cases of assault and the application of certain mitigating factors characterise the expertise needed to successfully underpin a legal defence case. Appointing an expert within this aspect of law will ensure you are best served to reduce any potential penalties that could occur in the worst case scenario.
About the author
Nick Titchener, director and solicitor advocate of Lawtons, is a dedicated criminal solicitor with considerable experience in the most serious legal cases including sexual offences, violence and assault. Nick’s measured and methodical approach means he thrives on even the most complex case.
Nick also oversees the overall management of Lawtons, a specialist firm of criminal law defence solicitors with branches across London, Hertfordshire, Bedfordshire and Essex.