Assault with Intent to Resist Arrest Flashcards
Q: What is the law on assault with intent to resist arrest?
S38 OAPA 1861- whoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of an offence.
Q: What type of offence is assault with intent to resist arrest?
Triable either way
Maximum sentence of 2 years’ imprisonment on indictment
Q: What must be shown?
1: The arrest was lawful
2: Accused knew the arrest was lawful
3: Accused intended to resist it
4: Accused knew that the person he assaulted (either by assault or battery) was seeking to arrest him.
Q: What if no offence has actually taken place?
It doesn’t matter if an offence has been committed because arrests can be lawful even if it turns out no offence was actually committed, provided one was reasonably suspected to have been committed.
Q: Does this apply to members of the public who carry out citizens’ arrests?
Provided they were acting within their powers, this offence can apply to arrests made not only by police officers but also by any person who has a power of arrest, i.e. members of the public.
Q: Is the state of mind necessary for this offence?
Once the lawfulness of the arrest is established, the state of mind necessary is that required for common assault coupled with an intention to resist/prevent that arrest/detention. Irrelevant whether or not the person being arrested or detained had actually committed an offence (COA decision)
Q: Is mistaken belief an offence?
COA- D mistakenly believed that the arresting officers had no lawful power to do so.
Court held that such a mistaken belief does not provide a D with the defence of ‘mistake’.
