Nelson, R. v [2013] EWCA Crim 30

[2013] EWCA Crim 30No: 201200918 D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 15th January 2013
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE KEITH
MR JUSTICE KING
Between
R E G I N ACrownv
Between
GARY NELSON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7422 6138(Official Shorthand Writers to the Court)
Mr I Brownhill appeared for AppellantMr M Greenhalgh appeared for Crown
J U D G M E N T
[1]MR JUSTICE KEITH: When giving leave to appeal, one of the members of the Full Court said, perhaps with his tongue in his cheek, that the Full Court might want to "take up the gauntlet ... and write the definitive work on assault and battery". We have not found it necessary to do that because the law seems to us to be tolerably clear, even if there is a passage in Archbold 2013 which might suggest otherwise. The appeal is being brought by Gary Nelson against his conviction for common assault on 23rd January 2012 following his trial before Judge Kearl QC and a jury at Leeds Crown Court. The Full Court gave him leave to appeal against his conviction following the refusal of leave by the single judge.[2]The appellant was a prisoner serving a sentence of life imprisonment at the time. The prosecution's case was that on 28th December 2010 the appellant had said to a prison officer, Michael Hammond, that he would "smash [his] fucking face in". The next day the appellant is alleged to have done just that. He had been taken from his cell and was being searched by Mr Hammond with an electronic metal detector when he punched Mr Hammond in the face. That allegation was covered by count 1 of the indictment, in which the appellant was charged with the offence of assaulting Mr Hammond by beating contrary to section 39 of the Criminal Justice Act 1988. The appellant had then been restrained by other officers, one of whom was Stuart Goldthorpe. The prosecution's case was that in the course of restraining the appellant, the cornea of one of Mr Goldthorpe's eyes had been scratched. That allegation was covered by count 2 of the indictment, in which the appellant was charged with assaulting Mr Goldthorpe thereby occasioning him actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861.[3]Although the appellant did not give evidence, the case which was put on his behalf was that although he had thrown a punch at Mr Hammond because Mr Hammond had been moving the electronic metal detector in what his counsel described as “a threatening way”, he had missed. Unless the jury were sure that the punch had landed, the appellant had to be acquitted on count 1 because an ingredient of the offence of assault by beating (as the offence of battery is described these days following the judgment of the Court of Appeal in DPP v Little [1992] 2 WLR 460) is the infliction of some violence. The blow has to land for someone charged with assault by beating to be convicted. Accordingly, shortly before the prosecution closed its case, counsel for the prosecution applied to amend the indictment by adding additional counts as alternatives to counts 1 and 2, namely two counts of common assault. That was because the infliction of some violence, however trivial or serious, is not a necessary ingredient of the offence of common assault. What is required for common assault as a minimum is for the defendant to have done something of a physical kind which causes someone else to apprehend that they are about to be struck. The judge did not allow the indictment to be amended in that way. The reason he gave was that the prosecution had put its case on the basis that the punch had landed, thereby implying that it was now too late to permit the prosecution to put the case against the appellant on an alternative factual basis. We need not comment on whether that approach was justified.[4]At the conclusion of the prosecution's case the judge directed the jury to acquit the appellant on count 2. The appellant therefore faced count 1 only. He elected not to give evidence, and no evidence was called on his behalf. By then, the judge had had second thoughts about whether it should be open to the jury to convict the appellant of common assault as an alternative to count 1. When he was reminded that he had already refused an application to amend the indictment to add a count of common assault as an alternative to count 1, the judge said that he had then been “largely concerned” with count 2. As it was, the judge decided to leave common assault to the jury as an alternative to count 1. He did so on the basis of a passage in Archbold 2012, which is reproduced in identical terms in Archbold 2013 at 19-232, and reads:
"A verdict of guilty of common assault may be returned as an alternative verdict under section 6 of the Criminal Law Act 1967: ... see section 6(3A), the effect of which is to reverse R v Mearns [1991] 1 QB 82."
[5]In the event the jury acquitted the appellant of the offence of assault by beating, and convicted him of common assault. The jury must be regarded as having been sure only that the appellant threw a punch at Mr Hammond, but not having been sure that the punch landed.[6]This appeal raises the issue whether common assault can be left as an alternative to an offence of assault by beating. That turns on the application of section 6(3) of the Criminal Law Act 1967, which provides:
"Where, on a person's trial on an indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."
That means that if the jury is to be able to convict a defendant of common assault on an indictment alleging assault by beating, all the ingredients of the offence of common assault have to be included in the ingredients of the offence of assault by beating.[7]As we have said, the offence of common assault is committed when the defendant does something of a physical kind which causes someone else to apprehend that they are about to be struck. It follows that an ingredient of the offence of common assault is that that has to have been apprehended by the person who is alleged to have been the victim of that assault. Such an apprehension, however, is not required for the offence of assault by beating. As Smith & Hogan's Criminal Law, 13th edition, says at page 623:
"It used to be said that every battery involves an assault; but that is plainly not so, for in battery there need not be an apprehension of the impending violence. A blow from behind is not any less a battery because [the victim] was unaware that it was coming."
It follows that because one of the ingredients of the offence of common assault is not among the ingredients of the offence of assault by beating, an allegation of assault by beating does not amount to or include, whether expressly or by implication, an allegation of common assault. It was therefore not open to the jury to convict the appellant of common assault by virtue of section 6(3) of the 1967 Act. The position would, of course, have been different if there had been an alternative count of common assault on the indictment. Then there would have been nothing to prevent the jury from convicting the appellant of common assault once he had been acquitted of assault by beating. But the route by which the judge left common assault to the jury, by way of an alternative verdict under section 6(3) rather than by an additional count in the indictment, was impermissible.[8]We wish to add one thing to that. We sympathise entirely with the judge, faced as he was with the passage in Archbold to which we have referred. What that passage did not do was to identify for which offences a verdict of common assault could be returned as an alternative. What Mearns had decided was that the effect of section 40 of the 1988 Act, together with section 6(3) of the 1967 Act, was that a defendant indicted on a charge of assault occasioning actual bodily harm could not be convicted of the offence of common assault unless the offence was already contained in or added to the indictment. A new section 6(3A) was added to the 1967 Act to get over that problem. It provides:
"For the purposes of subsection (3) above an offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc), even if a count charging the offence is not included in the indictment."
[9]Since common assault is an offence to which section 40 of the 1988 Act applies, a defendant can be convicted of common assault as an alternative to the substantive offence charged in the indictment even if the offence of common assault has not been charged. That is fine when the offence of common assault is left to the jury as an alternative to an offence of assault occasioning actual bodily harm, but it does not apply to an offence of assault by beating because the ingredients of the offence of common assault are not all included in the ingredients of an offence of assault by beating.[10]But that is not quite the end of the story. When the Full Court granted the appellant leave to appeal, it raised the question whether the appellant would have had any defence to a charge of attempted battery. It had in mind, of course, the Court of Appeal's power under section 3 of the Criminal Appeal Act 1968 to substitute a verdict of guilty for a different offence from the one on which an appellant was convicted if the jury must have been satisfied of those facts which would have proved him guilty of the different offence. The prosecution have decided to run with that ball. They now ask for the court to take that course, and instead of allowing the appeal, to substitute for the appellant's conviction for the offence of common assault a conviction for an offence of attempted battery.[11]The difficulty here is that section 1(4) of the Criminal Attempts Act 1981 provides that a defendant can only be guilty of attempting to commit an offence where the offence, if it had been completed, “would be triable in England and Wales as an indictable offence”, subject to certain exceptions, none of which are relevant here. The question therefore is whether the offence of battery would be triable in England and Wales as an indictable offence. The answer, at first blush, is "no": section 39 of the 1988 Act made the offence of battery a summary offence. But although it is a summary offence, there is at least one situation in which it may be tried on indictment. Section 40(1) of the 1988 Act provides that an offence of “common assault”, which the Court of Appeal in Lynsey [1995] 2 Cr App R 667 said should be construed as including an offence of battery, “may be included in an indictment if the charge … (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged …". There then follows a proviso which is not material to the present case.[12]In our opinion, an offence of battery in relation to Mr Hammond would have been part of a series of offences of a similar character as the indictable offence of assault on Mr Goldthorpe occasioning him actually bodily harm with which the appellant was charged. It follows that the offence of battery was one which was triable in England and Wales as an indictable offence, and it is open to the court to substitute a conviction for the offence of attempted battery for the conviction for the offence of common assault.[13]But should the court do so in this case? Until the evidence had been concluded, the only charge which the jury were considering in relation to Mr Hammond was assault by beating. That charge required the prosecution to prove that the punch had landed. The defence case in relation to that charge was not just that the punch had not landed. It was also that it had not been unlawful for the appellant to throw a punch at Mr Hammond in view of the way Mr Hammond had been conducting the search of him. Indeed, that had been one of the things put to Mr Hammond in cross-examination.[14]The relevance of that is this. Although Mr Hammond's evidence was that the punch had landed, none of the other five prison officers who gave evidence actually saw that. The highest it got was that one of them said that he thought that the punch had connected, but that appears to have been based on the fact that he saw Mr Hammond's head move back (which would have been just as consistent with Mr Hammond taking evasive action), not that he saw the punch land. The state of the evidence at the close of the prosecution's case on whether the punch had landed caused the defence to make the tactical decision not to pursue any longer its other line of defence that the appellant had not been acting unlawfully, and was a factor in the appellant's decision not to give evidence. That tactical decision may have been very different if, before the appellant had elected not to give evidence, he had known that he was liable to be convicted of common assault even if the punch had not landed.[15]That feeds into the question of whether the jury must have been satisfied of those facts which would have proved the appellant's guilt of the offence of attempted battery. The jury must have been satisfied of those facts, but their decision would have been based on the fact that the lawfulness of the appellant's throwing of the punch had not been asserted. But for the judge's initial refusal to add a count of common assault to the indictment as an alternative to count 1, the tactical decision made by the defence might have been different, and if the appellant had given evidence, it might have resulted in the appellant's acquittal on the alternative charge of common assault. If he had been acquitted, the opportunity for the Court of Appeal to substitute a verdict of guilty of attempted battery would not have arisen.[16]The power to substitute a conviction for an alternative offence under section 3 of the 1968 Act is discretionary, and is to be exercised in the light of what would be just in all the circumstances of the case: see Peterson [1997] Crim LR 339. For the reasons we have given, it would, in our opinion, not be just to substitute a conviction for an offence of attempted battery for the conviction for the offence of common assault. We therefore decline to do so, and in the circumstances we allow the appeal and we quash the appellant's conviction for common assault.