Assault with Intent to Resist Arrest (Section 38 Offences Against the Person Act 1861)

Assault with Intent to Resist Arrest is an offence under s.38 Offences against the Person Act 1861. A person commits the offence if he assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence (s.38). Maximum sentence: imprisonment for any term not exceeding two years, at the discretion of the court (s.38). The section as read gives a single penalty and does not itself state a mode of trial; the annotation records that s.38 was amended as to mode of trial by the Magistrates' Courts Act 1980, Schedule 1 paragraph 5. Where it is tried summarily as an offence triable either way, the term of imprisonment a magistrates' court may impose is capped at the general limit in a magistrates' court, which is 12 months (Sentencing Act 2020, s.224(1) and (1A)(b)).

In practice

This is an either-way offence: it may be tried at the magistrates' court or the Crown Court. Mode of trial depends on the seriousness and the defendant's election. Officers should photograph injuries at the earliest opportunity and again after 24-48 hours (bruising develops). Domestic abuse cases require completion of a DASH risk assessment. The suspect must be cautioned in accordance with Code C PACE 1984 before any questions about the offence are put to them. Interviews must be audio-recorded (Code E) or, for indictable offences, may be visually recorded (Code F).