Assault Charges: First Offence

We have written separately about what it means to face a common assault charge for the first time. Common assault contrary to Section 39 of the Criminal Justice Act 1988, is a summary-only offence, dealt with exclusively in the Magistrates’ Court (unless the offence is racially or religiously aggravated, or committed against an emergency worker), and while the consequences are real, the sentencing options are more contained. If that is the charge you are facing, we would encourage you to read that piece first. It is worth being clear on a point that causes genuine confusion:  “common assault” and “assault” are not necessarily the same charge. Common assault contrary to Section 39 of the Criminal Justice Act 1988 requires no injury and sits entirely within the jurisdiction of the Magistrates’ Court. Once a more than trivial physical or psychological injury is sustained, the law moves into different statutory territory altogether, and with it, a different level of exposure.

This piece relates to charges of assault occasioning actual bodily harm (ABH) and grievous bodily harm (GBH). These are more serious offences than Common Assault and carry the potential for more significant sentences. ABH and GBH offences are routinely tried in the Crown Court before a jury, and although being a first-time offender does not insulate you from any of that, though it makes a difference to how we approach your defence.

Why does it matter which offence you have been charged with?

The first thing we examine in any case is whether the charge itself is right. A charge is not a verdict, and it is not always an accurate reflection of what the evidence supports. The Crown Prosecution Service makes charging decisions based on initial police reports and early evidence, and in our experience those decisions are not always correct. Charges are sometimes laid at a higher level than the facts justify, either because the full picture has not yet emerged or because the prosecution has applied the wrong legal test. A skilled defence team does not simply accept the charge as the starting point. We analyse it, and where the evidence does not meet the threshold for the offence charged, we make that case robustly, whether that means pushing for a reduction from Section 18 GBH to Section 20, from GBH to ABH, or from ABH to common assault. The charge you face on day one is not necessarily the charge you will face at trial.

ABH under Section 47 of the Offences Against the Person Act 1861 requires that an assault caused some injury, whether physical or psychiatric but any such harm needs be more than “transient or trifling”. It is an either-way offence, meaning it can be heard in the Magistrates’ Court or the Crown Court. The maximum sentence is five years’ imprisonment, rising to seven years if the offence is racially or religiously aggravated.

GBH contrary to Section 20 of the same Act covers unlawful wounding or inflicting grievous bodily harm and carries a maximum of five years’ imprisonment. Section 18 GBH, which requires proof of specific intent to cause serious harm, is a wholly different proposition. It carries a maximum of life imprisonment and is always tried in the Crown Court. The main difference between the section 20 and section 18 offences is that for the latter, intent to cause really serious harm must have been present at the time the offence was committed. Intent means that you must have meant the resulting injury level to have been the outcome of the assault, and the prosecution have to prove this to be the case.

In practice, this means that when we take on an ABH or GBH case, we are examining three questions from the outset: does the injury alleged meet the legal threshold for the level of charge? Does the evidence of intent, where Section 18 is charged, actually support that level of charge and has the prosecution accounted properly for all the circumstances, including any basis for self-defence? Prosecutors do not always get these calls right, and the difference between charges is not just academic. It determines where your case is heard, the maximum sentence you face, and the entire complexion of the proceedings. We have written in more detail about how Section 18 and Section 20 GBH differ and that piece is worth reading alongside this one if you are facing a GBH charge.

What does intent mean in practice, and why does it matter so much?

Intent is the element that distinguishes a Section 20 GBH offence from a Section 18. It is also one of the most misunderstood aspects of serious assault law, and one of the most important to get right in building a defence.

In order to be convicted of a Section 18 GBH, the prosecution must prove that the defendant specifically intended to cause grievous bodily harm. Recklessness is not enough. What this means in practice is that the circumstances of the incident, what was said beforehand, what weapon (if any) was used, how many blows were struck and where, all feed into the question of what was in the defendant’s mind at the time.

We have defended clients charged under Section 18 where the evidence of intent simply did not hold up under scrutiny. Where intent cannot be proved to the required standard, the appropriate charge is Section 20, and the difference in outcome can be substantial. A first-time offender convicted of Section 20 GBH faces a very different sentencing exercise to one convicted of Section 18. For a broader picture of how the courts approach sentencing for violent offences, our piece on UK sentencing guidelines for violent offences sets that out clearly.

Does being a first-time offender carry real weight at this level?

It does, but it needs to be presented effectively. In Crown Court proceedings, mitigation is not just a list of good character points read out at sentencing. It is a carefully constructed picture of who the defendant is, the context in which the offence occurred, and why this incident represents a departure from an otherwise law-abiding life.

Previous good character is a formal direction the judge gives to the jury in Crown Court trials, and it carries genuine evidential weight. It invites the jury to consider the defendant’s character both as supporting their credibility as a witness and as making it less likely that they acted as alleged.

In the Magistrates’ Court, the direction will be given to the bench or district judge via the court clerk if applicable to the defendant in the case, and once again will have an important impact on their decision on verdict and sentence (if that becomes relevant).

At the sentencing stage, a clean record combined with genuine remorse, demonstrable impact of a conviction on the defendant’s life and career, and compelling personal references can all influence where a defendant is placed in the sentencing guidelines. We have seen first offenders in ABH cases avoid immediate custody where, on the face of it, the circumstances might reasonably have led to a different outcome. The quality of the mitigation matters as much as the material forming the mitigation itself.

What we are always honest about with clients is this: a first offence does not mean a lenient outcome is inevitable. At the serious end of GBH, particularly Section 18, Judges may impose significant custodial sentences on first time offenders where the harm caused and the culpability demand it. The task is to ensure the full picture is put before the court, not to assume good character will do the work on its own.

What defences are available at this level?

Every case turns on its own facts, but in ABH and GBH cases the defences we examine most frequently are:

• Self-defence. The force used must have been necessary and proportionate in the circumstances as the defendant believed them to be. This is often a viable argument in cases arising from confrontations where the defendant acted in response to a perceived threat. Expert evidence on the dynamics of the incident can be decisive.
• Challenging the level of injury. Medical evidence needs to be examined carefully. ABH and GBH are defined by the nature and extent of injury, and the prosecution’s characterisation of that injury is not always well-founded. A charge can sometimes be reduced where the injury does not meet the legal threshold.
• Lack of intent. Particularly relevant to Section 18 GBH, but also relevant to ABH where recklessness rather than intention is in issue. The prosecution’s assertion of what the defendant intended is frequently contested.
• Reliability of witness evidence. In cases arising from altercations, particularly where alcohol is involved or events moved quickly, witness accounts are often inconsistent. CCTV footage, phone records and forensic evidence all need to be weighed against what witnesses claim to have seen.

What should you do if you are facing one of these charges?

Instruct a specialist defence solicitor as soon as you can. We cannot overstate how much the early stages of a serious assault case matter. What is said at police interview, how the initial evidence is gathered, and whether the right experts are instructed from the start are not details that can always be rectified later.

At Old Bailey Solicitors, we defend clients across the full range of assault charges and serious violent offences. If you have read our piece on common assault first offences and recognise that your situation is more serious, we can help. We will give you an unvarnished assessment of where you stand, build the strongest possible case, and ensure your character and circumstances are placed before the court with the weight they deserve.

Bespoke advice, when you need it the most. Contact Old Bailey Solicitors today.