Common Assault: Alternatives and Attempts
| Date | 01 April 2013 |
| Published date | 01 April 2013 |
| DOI | 10.1350/jcla.2013.77.2.824 |
| Subject Matter | Court of Appeal |
Court of Appeal
Common Assault: Alternatives and Attempts
R vNelson (Gary) [2013] EWCA Crim 30
Keywords Common assault; Battery; Attempt; Alternative verdicts
The appellant Gary Nelson (N) was tried before Leeds Crown Court on
23 January 2012 on one count of assault by beating contrary to s. 39 of
the Criminal Justice Act 1988 (count one) and one count of assault
occasioning actual bodily harm contrary to s. 47 of the Offences Against
the Person Act 1861 (count two). The prosecution alleged that N, a
prisoner serving a sentence of life imprisonment, punched a prison
officer, P1, whilst P1 was attempting to search him using an electronic
metal detector. That allegation gave rise to the first count on the indict-
ment. The prosecution further alleged that in the process of restraining
the appellant another prison officer, P2, sustained an injury to the
cornea of his eye, thus giving rise to the second count on the
indictment.
At the conclusion of the prosecution’s case the judge directed the jury
to acquit the appellant on count two and the trial continued on the basis
of count one only. The defence contended that, whilst N accepted that
he had thrown a punch at P1 because P1 had been moving the electronic
metal detector in a ‘threatening way’ (at [3]), he had in fact missed
P1.
The judge, having earlier refused a prosecution application to amend
the indictment to include an allegation of common assault due to the
fact that the prosecution had ‘put its case on the basis that the punch had
landed’ (at [3]), decided to leave common assault as an alternative to
count 1 by virtue of s. 6 of the Criminal Law Act 1967. The jury acquitted
N on the charge of assault by beating, but convicted him of common
assault. N appealed the conviction, raising the question of whether
common assault could be left as an alternative to an allegation of assault
by beating under s. 6(3) of the Criminal Law Act 1967.
H
ELD
,
ALLOWING THE APPEAL
, the offence of common assault is
committed when the defendant does something of a physical kind
which causes someone else to apprehend that he or she is about to be
struck (at [7]). Such apprehension is not a required element of an
assault by beating (battery), the offence charged in the present case, and
as such it was not open to jury to convict the appellant of common
assault by virtue of s. 6(3) of the Criminal Law Act 1967. The charge of
common assault should instead have been included on the indictment as
an alternative count.
It was open to the court to substitute a conviction for the offence of
attempted battery (at [12]) for the conviction for common assault.
Although the offence of common assault (including battery) is a sum-
mary offence, it may be included on an indictment by virtue of s. 40(1)
of the Criminal Justice Act 1988 if the charge ‘(b) is part of a series of
102 The Journal of Criminal Law (2013) 77 JCL 102–118
doi:10.1350/jcla.2013.77.2.824
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