Assault with intent to resist or prevent arrest

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Assault with intent to resist or prevent arrest
  • The offence of assault with intent to resist or prevent arrest
  • Elements of the offence of assault with intent to resist or prevent arrest
  • Meaning of assault
  • The victim
  • Lawful apprehension or detention
  • 'For any offence'
  • The intention to resist/prevent arrest
  • Mistake of fact
  • Defences for the offence of assault with intent to resist or prevent arrest
  • More...

Assault with intent to resist or prevent arrest

The offence of assault with intent to resist or prevent arrest

Assault with intent to resist or prevent arrest is an offence which can be tried in the Magistrates' Court or the Crown Court.

The magistrates' court will decline jurisdiction if the sentencing powers of the court are considered to be insufficient. Guidance on the magistrates' court sentencing powers is provided by the Sentencing Council's Magistrates’ Court overarching guideline—allocation.

Elements of the offence of assault with intent to resist or prevent arrest

The elements of the offences are set out in the section 38 of the Offences Against the Person Act 1861 (OAPA 1861). The prosecution must prove:

  1. an assault on any person

  2. with the intention to resist or prevent

  3. the lawful apprehension or detention of oneself/another for any offence

Meaning of assault

Offences under OAPA 1861, s 38 require a common assault to have been committed.

Common assault requires conduct which causes the victim to apprehend immediate unlawful force upon them.

See further, Practice Note: Common assault and battery.

The prosecution must prove that the assault was committed intentionally or recklessly.

'Recklessly' means subjective or Cunningham recklessness.

The victim

There is no requirement for the 'victim' of the assault to be a police officer. The victim may be a private citizen assisting a police officer or a store detective making a 'citizen's arrest' (see R v

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