Judicial Review of Conviction for Simple Assault where Charge Alleges Assault by Beating: R (on the application of Kracher) v Leicester Magistrates' Court [2013] EWHC 4627 (Admin)

AuthorJames Roebuck
Published date01 August 2014
Date01 August 2014
Subject MatterDivisional Court
/tmp/tmp-17JzTGEca1eyhl/input Divisional Court
Judicial Review of Conviction for Simple Assault where
Charge Alleges Assault by Beating
R (on the application of Kracher) v Leicester Magistrates’ Court
[2013] EWHC 4627 (Admin)
Keywords Assault; Battery; Duplicity; Prosecution must put its case; Case
stated; Judicial review
On 24 January 2012 Leicester Magistrates’ Court convicted the claimant,
Kracher, of assault. The prosecution case was that on 18 March 2011 there
was a disagreement between Kracher and another road user, Aba, as to
whether or not Aba was blocking the road. An altercation ensued in a car
park behind a block of flats. During this altercation, Kracher was alleged
to have punched Aba on the arm and said, ‘Fuck off. If you come round
the back I will beat you up’.
Kracher was charged with common assault contrary to s. 39 of the
Criminal Justice Act 1988. The Crown put its case on the basis of the
punch and not the threat. However, on the evidence, the justices were not
sure that a punch had been delivered, but were sure that the conduct of
Kracher was such that the words used amounted to a threat of immediate
violence; it was on this basis that Kracher was convicted.
On 12 April 2013, Kracher renewed his application to challenge his
conviction by way of judicial review, the time limit for appeal by way of
case stated having expired and the initial application for judicial review
having been refused on the papers. The basis of Kracher’s application was
that whilst the summons alleged assault, the prosecution case was based
not on the words spoken, but on the alleged punch.
Held, dismissing tHe appeal, (1) it is important that a defendant knows
the case that he has to meet and in the circumstances it was not open to
the justices to convict Kracher of assault on the basis of the threat (at
[12]). Accordingly the conviction should be quashed and remitted to the
justices with a direction to acquit. (2) It is not a good reason to seek leave
to apply for a judicial review...

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