Recent days have seen news reports detailing incidents involving individuals allegedly coughing or spitting at another when making reference to Coronavirus. Quite rightly the Crown Prosecution Service has taken a firm line when emphasising that such behaviour will be treated as being a crime. Reports have already followed of the first such cases having been heard at court. It would appear that the first charges laid have entailed allegations of ‘assault’.
However, it is not entirely clear from reports what form of assault has been pursued. The term ‘assault’ is often interpreted as encompassing both a ‘common assault’, where unlawful violence is threatened by an offender, and an ‘assault by beating’, whereby unlawful violence is actually occasioned to another person. The latter is often also referred to as a ‘battery.’ Either form of assault requires the offender to either intend, or be reckless as to, either the fear of another that unlawful violence will be used against him or the actual application of unlawful force respectively.
In that event, it is likely that often only common assault constitutes the appropriate charge in cases of ‘corona cough’. In order for an assault by beating to be established in such cases, it will be necessary for the victim to have felt the actual application of the offender’s breath or saliva to their own person. In the absence of such evidence then it will not be possible to prove that there was any physical contact moving from offender to victim. Whilst for sentencing purposes the fact of there having been a physical contact might enable a court to treat the matter as being more serious, the maximum sentences for both offences are the same, being a six month custodial sentence or, in the case of a matter charged as a crime against an ‘emergency worker’, two years’ imprisonment.
The above means that the CPS needs to be very careful when considering the precise details of each case. Only in ‘point blank’ cases where there is categoric admissible evidence of physical force being applied, should it consider laying a charge alleging a form of assault by beating. In all other cases it should content itself with laying a charge only alleging a common assault. Indeed there is some force in the argument that such distinctions need not be drawn at all. Given that the overwhelming number of such cases will not warrant more than six months’ imprisonment, then such matters could properly be charged under either of s.4 or s.4A of the Public Order Act 1986. Those offences both provide for custodial sentences of up to six months’ imprisonment and do not require any such distinction to be made. Rather they merely require threatening behaviour to be used against another with respectively either the intention to cause another to fear immediate unlawful violence or to be caused harassment alarm or distress.
We await to see if the CPS approach to these matters evolves in the unfortunate event that the Coronavirus, and such incidents, both persist.