Assault with intent to resist arrest

s.38 Offences against the Person Act 1861 · Crown Court / Magistrates

Sentencing framework

The guideline structures sentencing for assault with intent to resist arrest by outlining a maximum custodial sentence of 2 years, with a broad offence range from a fine up to 1 year and 3 months' custody. Culpability and harm are key factors, with higher culpability leading to longer sentences. Aggravating factors such as previous convictions or commission of the offence while on bail increase seriousness, while mitigating factors like age, lack of previous convictions, or demonstrated remorse can lead to reduced sentences.

Maximum sentence

2 years’ custody

Court

Crown Court / Magistrates

Offence range

Fine – 1 year 3 months’ custody

Aggravating factors

·Previous convictions
·Offence committed whilst on bail
·Offence motivated by hostility (e.g., race, religion, disability)
·Deliberate spitting or coughing
·Biting
·Presence of children
·Gratuitous degradation of victim
·Any steps taken to prevent the victim reporting incident
·Commission of offence whilst under the influence of alcohol/drugs
·Offence committed whilst on licence or subject to post sentence supervision
·Failure to comply with current court orders

Mitigating factors

·No previous convictions or no relevant/recent convictions
·Remorse
·Positive character and/or exemplary conduct
·Age and/or lack of maturity (for offenders aged 18-25)
·Mental disorder or learning disability (not linked to offence)
·Sole or primary carer for dependent
·Determination to address addiction or offending behaviour
·Serious medical conditions
·Pregnancy, childbirth and post-natal care
·Difficult or deprived background
·Prospects of or in work, training or education

Sentencing range explorer

Select the culpability level and harm category to see the guideline's starting point and category range. This is an educational illustration of the published guideline — not a sentence calculation, and not legal advice. Courts apply the full step-by-step process, aggravating and mitigating factors, and the totality principle.

Culpability

Harm

Select a culpability level and a harm category above.

The sentencing process, step by step

Step 1 — determining the offence category
Step 2 — use sentencing table for starting point and category range
Step 3 — consider any other factors indicating reduction
Step 4 — consider reduction for guilty pleas
Step 5 — consider dangerousness
Step 6 — apply totality principle if multiple offences
Step 7 — consider compensation and ancillary orders
Step 8 — provide reasons for the sentence
Step 9 — consideration for time spent on bail

Guideline notes

Sentencers should be aware of the disparity in sentence outcomes for this offence based on ethnicity. Pre-sentence reports should be considered for community or custodial sentences.

Always read the full guideline

This is a one-page summary. For any live case, sentencing exercise, or legal advice the authoritative source is the Sentencing Council's own definitive guideline — including the category bands, step-by-step sentencing approach, and all statutory factors not captured here.

Open the full guideline on sentencingcouncil.org.uk

Source: Sentencing Council · Crown copyright, licensed under Open Government Licence v3.0. Summary fetched 2026-06-28. Not legal advice — see a regulated adviser for any live case.