Racially Aggravated Assault

Section 39 of the Criminal Justice Act 1988: Simple Common Assault
Section 29 of the Crime and Disorder Act 1998: Racially/Religiously Aggravated Assault

Maximum Penalty

In respect of a simple Common Assault a fine of up to a maximum of level 5 can be imposed and/or up to 6 months’ imprisonment. In the case of a Racially/Religiously Aggravated Common Assault a fine of up to a maximum of level 5 can be imposed and/or up to 6 months’ imprisonment if the matter is dealt with in the Magistrates’ Court and if dealt with in the Crown Court then up to 2 years’ imprisonment can be imposed with an unlimited fine.

Things to Know

A simple Common Assault can only be dealt with in the Magistrates’ Court.

A Racially Aggravated Common Assault can be dealt with in either the Magistrates’ Court or Crown Court.

Defences Available

Self-Defence: A person may use reasonable force to defend himself, his property or another. Where self-defence is put forward to justify the use of violence, the onus is on the Prosecution to disprove the offence beyond reasonable doubt. A person must not use force in attacking or retaliating or revenging himself. It is permissible to use force, not merely to counter an attack, but to ward off an attack that is considered to be imminent. The reasonableness or otherwise of the belief is only relevant in ascertaining whether the person actually held the belief or not. A man who is attacked can defend himself but can only do what is objectively reasonable in the circumstances as he believed them to be at the time.

Misadventure: If a horse out of control strikes a person that is not an assault. Another example might be in an old case that was decided, a soldier drilling in the ranks fired his gun as a man was passing unexpectedly and this was held not to have been an assault.

Accidental Jostling: In a crowd there is no assault if physical contact takes place as a result of slight overcrowding and the expected jostling of people within the crowd because there is an implied consent to the physical contacts of ordinary life. This would apply to accidentally bumping into a person walking down the street.

Consent: Consent of the victim is a defence but there are limits to this. A person cannot consent to such serious injury and whether a person can consent will be decided based on whether it is in the public interest to allow the activity complained of.

Reasonable Chastisement: This is a defence available to a parent accused of assaulting their child however the chastisement must be reasonable and moderate and will be assessed by reference to the nature and content of the Defendant’s behaviour, the duration, the physical and mental consequences to the child (if an injury results then it becomes unlawful regardless of the above) and the age and characteristics of the child.

Lawful Sport:
Players in games which involve some risk of injury in play must be taken to accept that risk and so a player who injures another in a fair tackle would not be guilty of assault even if the accused infringes the “rules of the game”. However, somebody who shows such blatant reckless disregard of the safety of the victim and whose behaviour falls far below the standards which might reasonably be expected of a person pursuing that sport may in fact be found guilty of an assault in such circumstances.

Trespasser: A trespasser should first be asked to leave but if he refuses then as much force as is reasonably necessary to remove him can be used. Similarly such reasonable force can be used to protect one’s property from actual or imminent damage which would have otherwise constituted an unlawful or criminal act.

Execution of Legal Process: An Officer of Justice acting on an Order of the Court can, if he is resisted, use whatever force is necessary to carry out the Order of the Court.

Provocation: This is not a defence but may be put forward to mitigate the penalty.


The Court will consider, when sentencing a person for such an offence, whether a weapon was used, whether the offender used kicks and/or head-butts and whether the assault was against a public servant carrying out his/her duty, for example assaults on traffic wardens are taken very seriously. The Court will also consider the vulnerability of the victim, whether the assault was unprovoked, how long the assault lasted, the extent of the injuries, whether there was any racial element to the offence.

Similarly the Court will consider any mitigating circumstances that might apply such as the good character of the offender and whether there was any provocation.

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