R Tibor Kracher v Leicester Magistrates' Court Crown Prosecution Service (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Saunders,Mr Justice Hickinbottom
Judgment Date30 July 2013
Neutral Citation[2013] EWHC 4627 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/3854/2012
Date30 July 2013

[2013] EWHC 4627 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Priory Courts

33 Bull Street

Birmingham

B4 6DS

Before:

Mr Justice Saunders

Mr Justice Hickinbottom

CO/3854/2012

Between:
The Queen on the Application of Tibor Kracher
Claimant
and
Leicester Magistrates' Court
Defendant
Crown Prosecution Service
Interested Party

Mr Clarke appeared on behalf of the Claimant

The Defendant did not appear and was not represneted

Mr Boyd appeared on behalf of the Interested party

Mr Justice Saunders
1

This is a renewed application for permission to apply for judicial review and the case has been listed for the hearing of the judicial review to follow on if permission is granted. Permission was refused on paper by Blake J. We give permission and we deal with the hearing as the hearing of the application itself.

2

The claimant seeks to quash the decision of the Leicester Magistrates' Court convicting him of assault and seeks an order that the case be remitted to the magistrates with a direction to acquit.

3

On 24th January 2012 the claimant was convicted of two offences. The first was an allegation of common assault on a man called Aba and the second an offence of resisting arrest arising out of the same incident. This application for judicial review only relates to the first of those convictions.

4

The incident out of which the charges arose occurred on 18th March 2011. The facts briefly were these. There was a disagreement between the claimant, who was driving a van, and the complainant, who was riding a motor bike, as to whether the complainant was blocking the road so that the claimant could not get through. Unfortunately the dispute continued onto a nearby car park behind a block of flats and the prosecution alleged that during the altercation the claimant punched the complainant on the arm and also said: "Fuck off. If you come round the back I will beat you up". Arising out of that incident the claimant was charged with common assault contrary to section 39 of the Criminal Justice Act 1988.

5

An affidavit from the chairman of the Bench setting out their conclusions on the facts and the basis of conviction has been filed which we have considered. That affidavit records that, on the evidence that they heard, the justices were not sure that a punch had been delivered but they were sure that the conduct of the claimant amounted to a threat of immediate violence when he invited the complainant to come round the back.

6

The offence of common assault can be committed in two distinct ways. One is the infliction of actual violence which should be described as a charge of assault by beating and the other should be described as an assault, meaning the threat of immediate violence, without any actual violence taking place.

7

The complaint here by the claimant is that while the summons alleged simple assault, the charge was based not on the threat but on the infliction of actual violence by a punch. It is submitted that in those circumstances it was not open for the justices to convict of assault on the basis of the threat and they should have acquitted the complainant of the charge.

8

While in the acknowledgement of service the Crown Prosecution Service who were joined as an interested party, opposed this application, the skeleton argument filed on their behalf demonstrates there is considerable agreement both as to the facts and the applicable law between the CPS and the claimant.

9

It is accepted by the Crown Prosecution Service that the case was put in the court below on the basis of the punch and not the threat to beat Aba up if he came round the back. They accept that should have been charged as assault by beating but was not. Apparently, the Crown Prosecution Service advised the police that that is how the claimant should be charged but for some reason that advice was not followed.

10

...

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1 cases
  • R Craig Ward v Black Country Magistrates' Court
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 19 March 2020
    ... [1969] 1 QB 439; (1968) 52 Cr App R 700, R v Lynsey [1995] 3 All ER 654 and R (Kracher) v Leicester Magistrates' Court [2013] EWHC 4627 (Admin), which, he submits, make clear that section 39 of the 1988 Act provides for two discrete, mutually exclusive offences, namely (i) common assault......
2 books & journal articles

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