COVID-19 and Revised Sentencing Guidelines for Common Assault

19th May 2020

Proposed legislation sees harsher punishment for those intending to transmit coronavirus, and the inclusion of spitting and coughing as aggravating factors when sentencing offenders

In recent weeks, we have seen an increase on reports that key workers across the country are increasingly being spat on and coughed at by members of the public during the pandemic. Most recently, we saw the death of rail worker, Belly Mujinga, who was spat on and sadly died from COVID-19.

Ms Mujinga, aged 47, was allegedly spat and coughed on in London Victoria’s station by a man claiming to have contracted coronavirus. She sadly died two weeks later from COVID-19.

Whilst investigations into the circumstances of the incident continue, we look at the ongoing consultation on revised sentencing guidelines for assault offences, and specifically a new high-culpability factor in common assault offences of “Intention to cause fear of serious harm, including disease transmission”, and inclusion of “spitting or coughing” as an aggravating factor.

Sentencing Guidelines Consultation: Assault Offences

In the context of the COVID-19 pandemic, the Sentencing Council is consulting on revised guidelines for seven assault offences including common assault, and a new guideline for assault on emergency workers.

The Council is proposing changes to the way in which the seriousness of assault offences is assessed. The revised draft guidelines introduce, where possible, more specific culpability and harm factors as well as a greater number of offence categories and sentence starting points and ranges.

The draft guidelines propose:

  • a new high-culpability factor in common assault offences of “Intention to cause fear of serious harm, including disease transmission”, and inclusion of “spitting or coughing” as an aggravating factor;
  • the introduction of a greater number of seriousness categories and sentence starting points in guidelines for sentencing Actual Bodily Harm and Grievous Bodily Harm; and
  • revised guidance for attempted murder to reflect changes to legislation in respect of sentences for murder where weapons are taken to the scene.
  • The Council is also proposing specific guidance for sentencing assaults against emergency workers, to reflect the Assaults on Emergency Workers (Offences) Act 2018, which introduced a higher statutory maximum sentence of 12 months for these offences.

The consultation, which is open until 15 September 2020, has been extended beyond the usual three months in light of recent events. Following consultation, definitive guidelines are expected to come into force in 2021.

New high level of culpability for those intending to cause fear of serious harm, including disease transmission

When sentencing an offender, the court must consider the seriousness of the offence. This helps them to determine which of the sentencing thresholds have been crossed; whether a custodial, community or other sentence is most appropriate; and key factors in deciding the amount of any fine imposed; lengths of custodial sentences or the incorporation of community sentences.

The seriousness of an offence is determined by two main indicators: the harm caused or risked being caused by the offence, and the culpability of the offender.  Harm must always be judged in the light of culpability. These factors are considered on each individual case and culpability should be the initial factor in determining the seriousness of an offence.

The level of culpability is determined by weighing up all the factors in the case such as motivation, whether the offence was planned or spontaneous or whether the offender was in a position of trust.

In relation to common assault, characteristics of higher culpability currently include prolonged assault, use of substantial force, targeting a vulnerable victim, strangulation or leading role in a group activity.

With no vaccine available, the fear of the transmission of the disease is still widespread. This has been reflected in revised sentencing guidelines which introduces ‘intention to cause fear of serious harm, including disease transmission’ as a factor indicating higher culpability for common assault.

Spitting or coughing as an aggravating factor

Sentencing guidelines for a particular offence will normally include a list of aggravating features which, if present in an individual instance of the offence, would indicate either a higher than usual level of culpability on the part of the offender, or a greater than usual degree of harm caused by the offence (or sometimes both).

In relation to common assault, aggravating factors currently include committing an offence in a domestic context, committing an offence whilst on license, presence of childcare, committing an offence against those working in the public sector, abusing a position of trust, and committing an offence whilst under the influence.

Following the acts of weaponising COVID-19, the Council have proposed that spitting or coughing on someone should be considered an aggravating factor when assessing culpability.

Assuming the suspect who assaulted Ms Mujinga is charged, we are likely to see harsher punishment and tougher sentencing against the individual involved. If the Defendant is sentenced after revised guidelines come into force in 2021, the Court are likely to find that the offender had a high level of culpability in the commission of the offence. Additionally, the presence of aggravating factors including spitting, coughing and committing an offence against someone working in the public sector will also be factored against them.

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Helen Kelsall is a Solicitor located in Manchester in our Business Crime & Regulation department

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