The Assaults on Emergency Workers (Offences) Act 2018 “Emergency Workers Act” came into force on 13 November 2018. Its purpose was to bring into force an aggravated form of common assault where the offence is committed against an “emergency worker acting in the exercise of their function as such a worker”.
Before the introduction of the Emergency Worker Act, where a Defendant was accused of assaulting a police constable, they were charged under s.89 of the Police Act 1996. The new Emergency Workers Act encompasses police constables within the definition of an emergency worker. CPS Guidance now instructs the police and prosecutors to charge an assault on a constable under the new Emergency Worker Act rather than under s.89 of the Police Act 1996.
Further to this, section 1(3) of the Emergency Workers Act extends the act to cover circumstances where the offence takes place at a time “when the person is not at work but is carrying out functions which, if done in work time, would have been in the exercise of functions of an emergency worker”. It will be interesting to see where the courts draw the line with this and when an off-duty police officer is considered to be acting within the execution of his function as an emergency worker.
The act does not define the phrase “exercise of their function as an emergency worker”.
The Emergency Workers Act was enacted to create an aggravated offence of assault akin to section 29(1)(c) of the Crime and Disorder Act 1998 which creates the offence of racially or religiously aggravated common assault. If assaults on emergency workers is to be considered in the same manner it will be a defence to the offence of assault on an emergency worker if the emergency worker was not acting in the exercise of his function as an emergency worker. This is supported by CPS guidance which states that Prosecutors should identify and, if necessary, obtain evidence of what the emergency worker was doing at the material time to address this element of the act.
What is not clear is how this element of the new offence compares to the offence of assault on a police constable under the Police Act 1996 which requires the constable to have been acting “within the execution of his duty”.
There are conflicting opinions as to whether the terms differ or are two of the same.
This leads to the question of whether the defence that a police officer was not acting in the execution of his duty applies to the new Emergency Workers Act offence i.e. would an unlawful arrest amount to a defence.
It is submitted that it is highly unlikely that it was the purpose of the legislation that the new offence would bypass the requirement for a police constable to be acting in the execution of his lawful duties. Further to this, at the very beginning of the Emergency Workers Act the term “exercise of their duty” is used. Taking this view, the defences that apply to the offence of assault on a police constable would apply to the new offence.
The new offence is triable either way and carries a maximum custodial sentence of 12-months imprisonment. This doubles the maximum custodial sentence for common assault and assault on a police constable of 6 months.
There are currently no sentencing guidelines for the new offence. In the recent case of R v Shaun James McGarrick  EWCA Crim 530 the Court of Appeal determined that the sentencing guidelines for common assault and assault on a police constable could not be read across and applied to the new offence.
The Estuary Chambers criminal team are able to provide advice in relation to proceedings under the Emergency Workers Act and all other criminal matters.
If you would like to instruct Rachel Scott or another member of the criminal team, please do not hesitate to contact us at firstname.lastname@example.org
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