N65P Assaults and supportive evidence in assault cases

1. Security protective marking

1.1. Not protectively marked.

2. Summary of changes

2.1. The following changes have been made to this policy on 7th December 2011:

 

• 8.5 and 10.7 Updated reference to DPP Guidance on Charging

 

2.2. This policy is due for review in November 2013.

3. Application

3.1. This policy applies to police officers and supervisors investigating assault cases. 

4. Purpose

4.1.  This policy, agreed with the Crown Prosecution Service (CPS) is intended to:

• provide guidance to officers and police staff employees of the requirement to provide supportive evidence for court hearings for any injury received as a result of an
• assault; reduce the number of medical statements provided as supportive evidence.

4.2. This policy and its standard operating procedures does not relate to incidents of domestic violence, or to children or young persons aged 17 years or under, or evidence gathering in accordance with the Youth Justice and Criminal Evidence Act.

 

 5. National charging standards

 
5.1.  Offences Against the Person Charging Standard is a document jointly issued by the police and CPS which provides the national charging standards for cases of assault.

5.2.  The standards are a set of guidelines which, are intended to allow operational officers to select the most appropriate charge(s) in cases of assault, after:

• a full investigation has been conducted, including arrest (if appropriate), interview of the defendant and completion of enquiries; and
• a decision has been made to prosecute the defendant, in accordance with the Prosecution and Diversion Policy Manual.

 

6. Background 

6.1.  All assaults which result in an injury, or injuries generally, require supportive evidence of the injuries sustained in order to afford a realistic prospect of a conviction. This supportive evidence may take the form of a statement (dependent upon the nature and extent of the injury) from:

• a police officer (who has seen the injury);
• some other third person, preferably an independent witness who may have seen the assault and/or the injury;
• a healthcare professional.

6.1.1.  Healthcare professionals

The following are identified as healthcare professionals:

• a registered medical practitioner;
• a Forensic Medical Examiner (FME);
• a registered dentist;
• a registered optician;
• a registered pharmaceutical chemist;
• a registered nurse, midwife or health visitor;
• a registered chiropodist, dietician, occupational therapist, orthoptist or physiotherapist;
• a clinical psychologist, psychotherapist or speech therapist;
• an art or music therapist employed by a health service body; and
• a scientist employed by such a body as head of a department.

6.1.2.  Registered medical practitioner

A registered medical practitioner includes any person who is provisionally registered under section 15 or 21 of the Medical Act 1983 and is engaged in such employment, as is mentioned in subsection (3) of the above sections.

6.1.3.  Forensic medical examiner (FME)

 
Forensic medical examiners are registered medical practitioners who are contracted by the force and specially trained in forensic medical examinations (i.e. to provide evidence for the court).

6.1.4.  Forensic nurse practitioner (FNP)

All FNP’s are registered nurses and are therefore healthcare professionals to whom this guidance applies.

 

7. Crime reporting 

7.1.  Offences should be classified in accordance with guidance contained in the Home Office (HO) counting rules. This may not reflect the choice of the offence charged. A current copy of the HO counting rules can be found on the force Intranet. Guidance can also be obtained from the Force Crime Registrar.

 

8. Investigation of assaults 

8.1.  The injured party in relation to all allegations of assault will be seen by a police officer as part of the investigation.

8.2.  All assaults recorded as crimes must be investigated. The level of investigation will be dependent on the specific circumstances of each crime report.

8.3.  Authorisation for Statement/Health Record from health professional form (available on area)

When taking a statement from an injured person obtain the above authorisation, even if the offence appears to be one for which medical evidence is not required (this administrative task could save time and effort if it is later necessary).

8.3.1.  Allegations of crime must always be recorded as soon as possible and in compliance with the National Crime Recording Standard. Guidance concerning when and what to record can be found in the Home Office Crime Recording Standard.

8.3.2.  The crime report should record the fullest detail available at the time of completion, particularly in so far as it relates to the nature of the injury.

8.3.3.  The reluctance of a victim to support police action or their desire to report an assault “for information only” is an insufficient reason not to record a crime.

8.3.4.  Officers attending scenes should be fully aware of the new provisions relating to evidence contained within the Criminal Justice Act 2003. Firstly, in relation to hearsay evidence, if at a later stage a victim is no longer able to provide evidence at court, it is possible that what they said to you may be give in evidence. This would require the relevant information provided to the victim to be recorded verbatim, at the time. This could become particularly relevant if the victim is too scared to give evidence at a later date through fear, or where they are unable to give evidence for other reasons.

8.3.5.  In addition, new provisions exist under the Criminal Justice Act 2003 relating to previous consistent statements uttered by the victim. It is important to always ask victims who else they have told about what happened to them and then obtain additional evidence from that other person. This could be used in court as evidence of consistency and truth of allegation.

8.3.6.  Officers will make a record in their pocket notebook and provide written continuity for the providence of any photographs.

8.4.  There may be circumstances where an assault results in no visible injury but other factors may exist which dictate the offence should be investigated, e.g.:

• vulnerable victims;
• victim under 16 years;
• racially motivated attack;
• homophobic Crime;
• domestic abuse;
• use of, or threat to use, any weapon;
• where it is in the public interest (e.g. assaults upon public officials, store detectives etc. assaulted during the execution of their duties, repeat victims, etc.);
• where as a result of a threat or physical confrontation emotional harm is caused (see 5.1 above).

8.5.  Following ACPO guidance and the commencement of the Director's Guidance on Charging 2011 Version 4,  the practice of directing people (who require no medical treatment) from police stations to their doctor in order for evidence of an assault or injury to be recorded, by the doctor, on that person’s medical record, is not an appropriate use of doctor’s time.

 

9. Photographing injuries 

9.1.  An officer viewing an injury will make a record either in their pocket notebook or in a statement describing their observations in detail. Consideration should be given to whether the standard of evidence would be enhanced by obtaining supportive photographic evidence.

9.2.  Not all injuries are suitable for photographing e.g. bruising where there is little or no definition. Officers should be aware that the visible manifestations of an injury may alter in time. Where there is any doubt as to whether an injury may be suitable for photographing, at the initial stage or a later stage in the investigation advice should be sought from a Crime Scene Investigator.

9.3.  The more serious the circumstances of the allegation and/or the nature of the injury the more likely supportive photographic evidence will be required.

9.4.  If the injury is deemed suitable for photographing, the attending officer/officer in the case will liaise with the Crime Scene Investigator to arrange a suitable time and location for the photography. In the main this will be at the police station where the equipment and conditions are more easily controlled resulting in better evidence. The officer attending/officer in the case will be responsible for communicating these details to the injured person.

9.5.  There will be instances when a police officer will take photographs of injuries. The photographs will be taken with a digitial camera as detailed in Policy N124 Digital Images.

9.6.  In cases of serious assault the Crime Scene Investigator will be tasked immediately.

 

10. Timing and requirement for supportive evidence 

10.1.  At all stages of the investigation an assessment has to be made of the nature and severity of the injury to determine the level of the appropriate charge and degree of supportive evidence required to support a prosecution. Differentiation between severe and minor injuries must be made in accordance with the Offences against the Person Act Charging Standard, the main points of which are summarised in the flow chart at paragraph 17 below (determine level of severity).

10.2.  Whatever the outcome of the case, where there is an allegation of violence against an individual it is important to gather as much information as possible. If the victim later withdraws support for a prosecution for whatever reason, that case could still be utilised as bad character in future cases against the same potential offender. However it is essential that the information be gathered at the time.

10.3.  The appropriate level of charge should be determined in accordance with the National Charging Standards.

10.4.  To enable the CPS to make informed review decisions about the appropriate level of charge, the fact such supportive evidence is available, and from what source, must be made available to them on form MG6.

10.5.  If a not guilty plea is subsequently received or the case is transferred / committed to the Crown Court, supportive evidence will be required immediately.

10.6.  There is no rule of law that requires proof of every injury to be substantiated by a medical report. The following paragraphs should be considered in assessing whether a statement is required.

10.7.  Under the Director's Guidance on Charging 2011 Version 4, in any case involving an allegation of assault which is suitable for sentence in the Magistrate's Court, evidence will not be required from a medical practitioner for a decision on charging or for the initial court hearing. Details of injuries will be recorded in the appropriate section on the MG5 form.

10.8.  In the case of an offence of assault occasioning actual bodily harm, a medical statement will not be required unless the injuries can only be proved through the interpretation of medical records or X-rays by a medical practioner. Such a statement will only be required where, during interview, the suspect does not accept the nature and exent of injuries caused.

10.9.  Other good reliable eye witness evidence or good quality photographs accompanied by descriptions of the extent of the injuries will suffice for other summary assault cases.

10.10.  However, where the victim of an assault has sought medical attention, this must be revealed to the prosecutor unless a statement from the medical practitioner forms part of the prosecution case. When medical statements are taken, a copy of any medical notes should be obtained.

10.11.  If it is decided to obtain a medical statement, one should be requested at the earliest opportunity. The timescale for obtaining the statement should be agreed with the provider in accordance with the Protocol for the Provision of Witness Statements from Hospital Accident and Emergency Staff for Criminal Proceedings.

10.12.  The classification of statements (emergency, urgent or standard) under the protocol referred to in paragraph 10.11 and the timescales for their delivery should be followed as far as possible with all health care professionals irrespective of whether they are employed in accident and emergency departments.

10.13.  The CPS must be informed of these timescales, on form MG6.

10.14.  Certain cases, such as those involving fractures, damaged teeth, psychiatric injury, internal injuries and those requiring private medical examination to avoid embarrassment will always require a medical report. Where there is a dispute as to the extent or cause, a medical report may be a central feature of the case.

 

11. Criminal Procedure and Investigations Act 1996 (CPIA) 

11.1.  Although a statement may not be sought or required, the fact an injured person:

• has attended a health professional for advice/treatment of their own accord; or
• has been subject of examination by an FME or custody nurse; or
• has had the injuries observed by a police officer or some other third person

will be revealed to the CPS by means of form MG6C or MG6D. If the OIC or disclosure officer believes this information falls within the test for primary (or later secondary) disclosure, this will be communicated by means of the MG6E.

11.2.  See Policy N77 for further details concerning the CPIA.

 

12. Disposal 

12.1.  Instruction and guidance is contained in the ‘Crime Recording and Disposal Manual’ circulated by the Crime Audit Unit, Force HQ to all areas.

 

13. Common assault

 
13.1.  It is an offence contrary to Section 39 of the Criminal Justice Act 1988 (the Act) for any person to unlawfully assault or beat any other person.

13.2.  The Act creates two offences: ‘assault’ and ‘assault by beating’ (battery).

• An assault is:

‘Any act intentionally or recklessly causing the victim to apprehend immediate and unlawful personal injury or violence’

• A battery is:

‘An act by which a person intentionally or recklessly applies force to the complainant’.

[For examples and fuller details concerning assault and battery see The Criminal Justice Act 1988 via the Legal Database on the Intranet].

13.3.  Section 39 of the Act gave the police power to institute proceedings for common assault, and removed the ability of members of the public to bring a prosecution for common assault at the Magistrates' Court. The purpose of this legislation was to enable the public to take cases of common assault to the civil courts themselves, and to allow the police to prosecute offences in the Magistrates Court. The injured party should always be advised of their right to institute proceedings in the civil court.

13.4.  It should be noted there may be circumstances where a common assault has resulted in no injury and a charge may still be preferred. In such an instance supportive evidence may, by necessity, be restricted to the injured person’s appearance, demeanour, manner or behaviour. Absence of physical signs should be noted.

13.5.  If the injury is clearly visible (i.e. without the necessity of removing clothing), an officer of either sex may provide the statement. In any other instance only an officer of the same sex as the injured person will witness any injury.

13.6.  The evidence from a healthcare professional is not required for an injury received as a result of an assault which is appropriately charged under Section 39 of the Act. Supportive evidence can be provided by:

• a police officer or other police employee who has seen the injury;
• some other third person by way of written statement, preferably an independent witness who may have seen the assault and/or the injury.

13.7.  Officers are reminded of the requirement to record such matters in their pocket note book.

 

14. Assault occasioning actual bodily harm 

14.1.  Assault occasioning Actual Bodily Harm (ABH) under Section 47 of the Offences Against the Person Act 1861 has been defined as ‘any hurt which interferes with health or comfort but not to a considerable degree’. It is also now recognised that ABH can include mental harm. For examples and fuller details see Offences Against the Person Act 1861 via the legal database on the Intranet.

14.2.  The following injuries are examples suitable for prosecution as ABH. This list is not definitive.

Example of Injury	Consider Supportive Evidence From
Loss or breaking of tooth or teeth	police officer dental practitioner crime scene investigator healthcare professional
temporary loss of sensory function (which may include loss of consciousness)	health professional
extensive or multiple bruising	police officer crime scene investigator
displaced broken nose	health professional
minor fractures	health professional
minor, but not merely superficial, cuts of a sort probably requiring medical treatment e.g. stitches	police offcer crime scene investigator
psychiatric injury which is more than fear, distress or panic	health professional

 

14.3.  Each case must be judged according to its individual circumstances so, for example, where there has been extensive damage to a person’s teeth requiring substantial dental surgery, a statement from the dental surgeon would be expected.

14.4.  In the interest of security of best evidence, it may be necessary on occasion to consider the timing of obtaining additional supportive evidence. Any injuries requiring on going treatment or where the prognosis is unsettled, statements from more than one healthcare professional may be required.

15. Other serious assaults

 
15.1.  Charges for ‘wounding or inflicting grievous bodily harm’ (GBH) or ‘wounding or causing grievous bodily harm with intent’ (Sections 18 and 20 of the Offences Against the Person Act 1861) will always require supportive evidence from a health professional. For examples and further details concerning GBH related offences see Offences Against the Person Act 1861 via the legal database on Intranet.

15.2.  Sexual assaults (rape, indecent assault) will require supportive evidence from a health professional.

15.3.  In cases involving death a Home Office Pathologist Report is required.

 

16. Householders and the use of force against intruders 

16.1.  Householders suffer considerable and sometimes avoidable distress through the delay caused by the uncertainty over whether they are to be prosecuted for causing injury, sometimes fatal, to intruders. An investigation is unavoidable especially if there has been a serious injury and forensic investigation has to take place. In some cases where the facts are very clear, or where less serious injuries are involved, the investigation will be concluded very quickly, without any need for arrest.

16.2.  The following are guidance from the joint ACPO and CPS document, which has been agreed by the Director of Public Prosecutions (DPP).

1) Investigation into the offence will be carried out as per policy.
2) An experienced investigator will oversee the case.
3) Investigation must be carried out as swiftly and sympathetically as possible.
4) If the police are satisfied that there has been no offence committed by the householder, the CPS will not need to be consulted and the police will take the necessary steps to inform the householder directly.
5) Where a case is likely to be referred to the CPS early consultation should be made. The CPS will inform the DPP on our behalf of the circumstances of the case.
6) Where a duty prosecutor is consulted and in the absence of any complications, the case will be prioritised to ensure a senior lawyer will make a decision within 48 hours of receipt of the case file.
7) If the offence occurs out of office hours and advice is sought from CPS then CPS Direct should be contacted in the normal way.
8) In light of the anticipated press interest in these cases, they should be considered as high profile media-interest cases and the press office should be informed as soon as possible.
9) Chief Constables report to be completed on the storm record.

 

17. Flow chart (determine level of severity) 

 

 

18. Equality impact assessment

18.1. This policy has been assessed with regards to its relevance to race and diversity equality. As a result of this assessment, it has been graded as having a low potential impact.

 

18.2. Attached is the latest equality impact assessment that forms part of the policy review process.