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Assault with intent to resist arrest

Violence and injury — practical elements, sentencing links and station notes for accredited reps in England & Wales.

Violence and injury

Assault with intent to resist arrest

Offences Against the Person Act 1861, s.38

England & Wales. Elements, mode of trial, maximum and defences — not a charging or outcome predictor.

Triable
Either way
Maximum penalty
2 years' custody

Actus reus

  • Assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence (OAPA 1861, s.38).

Mens rea

  • Intention to resist or prevent a lawful arrest or detention. The assault itself needs the usual assault/battery mens rea (intention or recklessness as to force).

Defences

The apprehension or detainer was not lawful · No assault / no application or apprehension of force · No intent to resist or prevent arrest · Self-defence if the force used to effect the arrest was itself unlawful

Sentencing Council

Sentencing Council guideline effective 1 July 2021.

View definitive guideline ↗

At the police station

Lawfulness of the arrest is often the whole case. Get the grounds, the words used, and BWV of the struggle. Distinguish from assault on an emergency worker (2018 Act) and Police Act 1996, s.89.

When to involve a rep or solicitor

Police station advice is free under legal aid and is not means-tested.

Authoritative sources for this page

Statute plus Sentencing Council (and CPS where listed) are the two primary sources we used for mode of trial, maximum and elements. Case links are from our verified registry only.

More in Violence and injury

Back to the full offences index

Sources & further reading

Links are to official publishers (legislation, gov.uk, CPS, LAA, Sentencing Council). Case law on this site is limited to entries in our verified case-law registry. Always confirm the current version before relying on it in live advice.