The words and actions of those who wear the uniform of the state, as Police Officers, already carry more weight than those of ordinary members of the public, who are wise to be wary about challenging them, for authority and arrogance so often go hand in hand.
It is in this context that I am increasingly worried about the criminal courts interpretation of a relatively new law on the statute books, which could lead to a further imbalance of power between the Police and the public, shield abusive officers from accountability for their actions and risk the criminalisation of innocent people.
The offence of “Assaulting an Emergency Worker in the Exercise of their Functions” came into force in November 2018, under Section 1 of the Assaults on Emergency Workers (Offences) Act 2018.
The 2018 Act is a piece of legislation designed to allow more stringent penalties for “aggravated” common assault/ battery – though crucially the aggravation at which the new law takes aim is not defined by the seriousness of the injury (the infliction of serious injury being covered by the existing offences of ABH/ GBH – Actual or Grievous Bodily Harm), but rather who the victim is.
In the criminal law, a ‘common assault and battery’ is one which results in little or no injury to the victim (injuries such as grazes, scratches and bruises are covered), and is an offence triable only in the Magistrates Court (as opposed to the Crown Court) and which carries a maximum custodial penalty of 6 months.
The new offence of ‘assaulting an emergency worker’ is triable in the Crown Court (as well as the Magistrates) and carries a much more severe maximum sentence of 12 months imprisonment.
The definition of ‘emergency worker’ includes agents of the state such as firemen, paramedics, doctors, and prison officers – but also, of course, Police Officers.
A special law addressing common assaults upon Police Officers has in fact long been in existence, that is the offence of “Assaulting a Police Officer in the Execution of their Duty”. Under Section 89 of the Police Act 1996, this offence remains triable only in the Magistrates Court and carries a maximum penalty of 6 months imprisonment.
But a crucial difference exists between the offences regulated by the 1996 Act on the one hand and the 2018 Act on the other – the fact that the 1996 offence could only be committed if the officer was “acting in the course of his duty” i.e he was not exceeding his lawful powers.
If a Police officer, for example, trespassed in someone’s house, assaulted, or attempted to unlawfully arrest them, then they could not be said to be ‘acting in the course of their duty’.
The new law, it seems quite deliberately, has changed the definition of its applicability from “the course of duty” to the much more vague and general “exercise of functions”.
A lot of lawyers such as myself who practice in the field of civil liberties and/or criminal law, were greatly concerned that the new definition meant that the 2018 Act would apply even to officers who were not acting in the proper execution of their duty i.e an officer could be doing an unlawful act, and yet a person resisting the officer could nevertheless be criminalised.
Indeed, this very intention – to give Police officers extra layers of legal protection even when they are exceeding the bounds of their powers – appears to have been what the wording of the Act was designed to bring about. CPS guidance is now that all offences which would have been prosecuted under the 1996 law, should be brought under the 2018 offence – and this is because it is easier to secure a conviction for the new offence (and potentially a much longer sentence). Strikingly, it has been reported that during the first year following the introduction of the Emergency Workers Act, 90% of the 20,000 prosecutions brought under it have related to alleged assaults upon Police officers, and only 10% to the other Emergency professions – such as paramedics, nursing staff etc.
Our concerns crystallised in the case of Campbell v CPS EWHC 3868 (Admin), which came before the High Court of England & Wales on appeal.
The case concerned the arrest of Tonique Campbell by officers of the Metropolitan Police for alleged drunk and disorderly behaviour in March 2019. Ms Campbell was alleged to have scratched PC Regan’s thumb as the officer attempted to handcuff her, and then later to have kicked PC Young and PC Regan.
The case went on appeal from the Magistrates Court to the High Court with the following questions-
1. Were we right to conclude that a defendant can be convicted of assaulting an emergency worker contrary to section 1 of the [2018 Act] even where the officer may not have been acting in the execution of his duty?
2. Were we right to conclude, even on the facts of this case, that even if PC Regan was acting unlawfully when she took hold of Ms Campbell to handcuff her, this would not prevent us finding her guilty of the subsequent assaults at the police station?
3. Were we right to conclude that the case law pertaining to assault police officer in execution of his duty contrary to section 89 of the Police Act 1996 did not apply to offences brought under section 1 of the [2018 Act]?
Chillingly, from the point of view of all who are concerned with preserving and safe guarding our civil liberties, and constraining or remedying Police abuses of power, the answer from the High Court to all three questions was “Yes.”
A law that is designed to reduce acts of violence, by strengthening criminal sanctions so as to make police officers ever more ‘untouchable’, may have the opposite effect, by encouraging those who can already too easily fall into the roles of bullies or abusers i.e certain Police officers, to believe they have greater impunity to overstep the mark; and they may hesitate less in using force on members of the public than they did in the ‘good old days’ when – quite properly – their special protection under the law was stripped away if they were in dereliction of their duty by exceeding or abusing their power.
If ‘functionality’ is thereby detached from the clear rights and wrongs of constitutional duty, then the new law is, in effect, giving Officers licence to rush into a situation in an ever more hot-headed and aggressive manner, to deliberately or recklessly act unlawfully.
Whilst the argument of ‘lawful self defence’ remains for those who face charges under the Emergency Workers Act, there can be no doubt that the new law will make it harder for people who have been the victims of unlawful police acts, and who have responded with some measure of force – even something as minor as a push or a shove without injury – to escape the stigma and trauma of conviction. Such individuals would then be facing an uphill struggle to seek redress in the civil courts because of that pre- existing conviction.
We should also never forget that some people who are accusing of assaulting a Police Officer haven’t in fact laid a finger upon him at all – indeed my client Mark Bamber was first accused of this very offence, before the tables were turned on the four ‘Emergency Workers’ who had criminally conspired against him (but only because of the unimpeachable testimony of video evidence that even in the modern era, does not exist in many cases).
Do we really want it to become easier for people to be framed for a Police assault? This is one of the potential effects of the new law; a law which from its title may seem designed primarily to protect front line health care workers, but which is really a shot in the arm for Police to act with greater impunity, greater immunity, arrogance and in excess of the true limits of their authority.
Here is the mission statement of the new law, as set out by the Ministry of Justice –
“An assault on any individual or citizen in our society is a terrible thing, but an assault on an Emergency Worker is an assault on us all. These people are our constituted representatives. They protect society and deliver services on our behalf. Therefore, an attack on them is an attack on us and on the state, and it should be punished more severely than an attack simply on an individual victim.”
Those words are not ones which sit easily with me, and I feel compelled to contest the principle behind them. Police officers already have enough extra powers and protections invested in them through their office as constables and the support of the monolithic institutions of the Police Force and its sibling organisation the CPS, without being further elevated. All citizens should be treated equally, and no legal ‘caste’ system introduced on the basis of a person’s profession; particularly not the profession which is the muscular right arm of government.
This is an insidious law, and I trust that judges and juries will do all they can to rein in its misapplication; and may wiser council prevail next time such a case comes before the appeal courts. Otherwise, it may, over time, chip away at our hard- earned civil liberties, and give ever greater licence to Police abuses of power.