Assault with intent to resist arrest is an offence under section 38 of the Offences Against the Person Act 1861. In England and Wales, it applies where a person assaults another with intent to resist or prevent the lawful apprehension or detention of themselves or another person for any offence.
The offence is wider than assaulting a police officer. It can apply to assaults on other people involved in a lawful apprehension or detention, including store detectives or members of the public in appropriate circumstances.
Legal Basis
Section 38 of the Offences Against the Person Act 1861 creates the offence. CPS guidance describes it as committed when a person assaults another person with intent to resist arrest or prevent the lawful apprehension or detention of themselves or another for any offence.
The offence is triable either way and carries a maximum sentence of two years' imprisonment.
Elements
The prosecution must normally prove:
- An assault.
- An intention to resist or prevent lawful apprehension or detention.
- That the apprehension or detention was lawful.
- That the intent related to the defendant or another person.
The assault does not have to cause serious injury. If serious injury is caused, a more serious charge may be appropriate.
Lawful Apprehension or Detention
The word "lawful" is important. If the arrest, apprehension, or detention is not lawful, the section 38 offence may fail.
Lawful apprehension can include a police arrest. It can also include lawful detention by a person other than a constable, such as a store detective or shop worker relying on a lawful citizen's arrest power where the statutory requirements are met.
Relationship With Police Act 1996
Section 89 of the Police Act 1996 creates summary offences of assaulting a constable in the execution of duty and resisting or wilfully obstructing a constable. Section 38 is different because it is an either-way offence, can involve non-police victims, and focuses on intent to resist or prevent lawful apprehension or detention.
If the person assaulted is an emergency worker acting as such, the Assaults on Emergency Workers (Offences) Act 2018 may also be relevant.
Relationship With Citizen's Arrest
Section 38 can arise where a non-police person is trying to lawfully detain a suspect. For example, theft is an either-way offence and can fall within section 24A of the Police and Criminal Evidence Act 1984 if the strict citizen's arrest conditions are met.
If a shop worker lawfully detains someone for suspected theft and is assaulted by the suspect trying to escape, section 38 may be considered. If the detention is unlawful, the prosecution position is weaker.
Practical Examples
Shop Theft Detention
A store detective sees a suspect steal goods and lawfully detains them while police are called. The suspect punches the store detective to get away. Section 38 may be considered because the assault is linked to resisting lawful detention.
Preventing Another Person's Arrest
A person attacks someone who is lawfully detaining their friend. Section 38 can apply where the intent is to prevent lawful apprehension or detention of another person.
Unlawful Detention
A private person grabs someone with no lawful basis and tries to hold them. If the detained person pushes them away, section 38 may not apply because the detention itself was not lawful.
Serious Injury
A suspect stabs someone while trying to escape lawful detention. Section 38 may be relevant, but prosecutors may choose a more serious offence such as section 18 or section 20 depending on injury and intent.
See Also
- Offences Against the Person Act 1861
- Citizen's Arrest
- Obstruction of a Constable
- Police and Criminal Evidence Act 1984
- Assault occasioning Actual Bodily Harm
References
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