R v Assim
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR. JUSTICE SACHS |
| Judgment Date | 09 May 1966 |
| Judgment citation (vLex) | [1966] EWCA Crim J0509-1 |
| Docket Number | No. 113/66 |
| Court | Court of Criminal Appeal |
[1966] EWCA Crim J0509-1
IN THE COURT OF CRIMINAL APPEAL
Royal Courts of Justice
The Lord Chief Justice of England (Lord Parker)
Mr. Justice Sachs
Mr. Justice Edmund Davies
Mr. Justice Thompson
and
Mr. Justice Browne
No. 113/66
MR. PAUL WRIGHTSON, Q.C., MR. BASIL WIGODER, Q.C. and MR. A.T.GLASS appeared as Counsel for the Appellant.
MR. SEBAG SHAW, Q.C., MR. W.M.F. HUDSON and MR. GEOFFREY LEACH appeared as Counsel for the Crown.
Mr. Justice Sachs will read the judgment of the Court.
At the Inner London Sessions in January the Appellant was charged and tried together with his co-accused Cemal on an indictment containing two counts. Count 1 was against the Appellant alone and charged him with maliciously wounding Wilkinson on October 29th. Count 2 charged Cemal alone that on the same date he assaulted Longton and so occasioned him actual bodily harm. At the outset of the trial the Deputy Chairman asked the two defending Counsel whether they had any objection to the counts being tried together and each gave a negative reply.
The case for the Crown was that Wilkinson, Longton and two other men went to a club where the Appellant was employed as a receptionist and Cemal as a doorman. After they had consumed champagne and beer they were presented with a bill for £28, which they protested was excessive. They paid £20 and then started to leave, but after Longton and one other of the quartet had got outside, the glass door was shut behind them. According to Wilkinson, both accused men then approached him and the Appellant said, "You pay now or I'll mark you for life", and shortly thereafter he slashed Wilkinson's face with a knife. Seeing this incident through the glass door, Longton tried to re-enter the club to assist his friend and there ensued a struggle in the course of which Cemal assaulted him.
The Deputy Chairman having directed the Jury that the case in relation to each accused must be looked at "independently of the other charge against the other accused", they convicted both accused. Cemal was fined and Assim received a sentence of nine months' imprisonment.
The sole ground of Assim's appeal against that conviction is thus stated: "That the Court had no power in law to try together two defendants on an indictment containing only two counts, one count being against this Appellant alone for maliciously wounding one Wilkinson, and the second count being against his co-defendant alone for assaulting one Longton". It is submitted that, in consequence of this alleged misjoinder, the whole trial was a nullity, that there was accordingly a fundamental defect which cannot be cured by applying the proviso to Section 4 of the Criminal Appeal Act, 1907, and that venire de novo does not lie in the circumstances.
Mr. Wrightson's submissions, which were developed in an elaborate argument for which the Court is indebted, may be summarised in this way: At common law, there could be a joinder of offenders in the same indictment only if (a) they had joined in committing the offence charged ( Atkinson 1 Salkeld 582; Weston 1 Strange 623); or (b) they were principals and accessories (Hale's Pleas of the Crown, Volume 2, page 173; Hawkins' Pleas of the Crown, Volume 2, page 831); or (c) a public nuisance was the result of the separate acts of several defendants ( Kingston 1806 East at page 41; Trafford 1831 1 Barnwell and Alderson page 874). It was said to be significant that it required statutory authority to enable separate receivers to be tried in the same indictment, and this was provided by the Criminal Justice Administration Act, 1851, Section 14 (now replaced by Section 44 (5) of the Larceny Act, 1916) and the Accessories and Abettors Act, 1861, Sections 6 and 8. The Indictments Act, 1915, and the appended Rules made no provision, it was submitted, for the joinder of offenders, Section 4 and Section 5 relating solely to the joinder of offences against the same accused, and Rule 3 having the same limited scope ( Tizard 1962 46 Criminal Appeal Reports, page 82). It was said that the inclusion in the present indictment of these two offenders is not permitted by common law or authorised by Statute and there was here accordingly a fatal misjoinder.
This Court has already intimated its rejection of this appeal against conviction and now proceeds to give its reasons therefor. But at the outset it seems desirable to emphasise that, when reference is had to the old authorities on joinder, care is needed in ascertaining whether the point at issue was the joinder of separate offenders in the same count or their inclusion in separate counts in the same indictment. A classical instance of this source of confusion is ( Phillips 1731 2 Strange, page 921), which is commonly cited as authority for the proposition that two perjurers cannot be charged in separate counts in the same indictment (see, for example, Leigh and Harrison 1966 1 All England Reports, page 687). But the report itself is not explicit, and it has been pointed out (Journal of Criminal Law, 1938, Volume 2, page 241) that Starkie in his "Criminal Pleading" (2nd Edition 1828, Volume 1, page 36) discusses Phillips on the basis that what was there condemned was not the inclusion in the indictment of separate counts for perjury against several accused, but their inclusion in one count. It is distinctly germane to the present appeal to observe that, when dealing in a later passage with the charging of different offences against several persons in separate counts, Starkie wrote at page 43. "But though an indictment would be vicious which alleged that several persons, jointly, committed an offence, which from its nature must have been the several offence of each; yet if, in the same indictment, as found by the grand jury, several offences be alleged to have been committed by several persons, no advantage it seems can be taken, either upon demurrer or in arrest of judgment, though the Court will, in its discretion, either quash the indictment altogether, or use such measures as shall obviate any inconvenience to the defendants which might otherwise arise. For the charging of the offences to have been committed severally makes each charge a separate indictment".
Contrary to what we understand to be Mr. Wrightson's submission, the Criminal Justice Administration Act, 1851, Section 14, had nothing to do with authorising the joinder of receivers in the sane indictment, but (like Section 44 subsection (5) of the Larceny Act, 1916) with the conviction of those jointly charged in the same count when it has been shown that though the property was all stolen at the same time the receivings themselves occurred separately at different times. As was pointed out in ( Scaramange 1963 47 Criminal Appeal Reports, page 213), it was probably enacted to overcome the sort of difficulty which had arisen in such cases as Messingham( 1830 Moody's Crown Cases, page 257). Again while the Accessories and Abettors Act, 1861, Section 6, made provision for including in the same indictment accessories at different times to the same felony and offenders who had at different times received stolen property where the only nexus was that the property had all been stolen at one time, it by no means follows from this that, if there was some other and closer link between receivers or other types of offenders, they could not at common law have been individually charged in separate counts in the same indictment.
On the contrary nearly 20 years earlier it had been held proper in ( Barber 1844 1 Carrington & Kirwan, page 434 174 E.R. 884) to charge several accused persons even in the some count with feloniously inciting another to forge a will, notwithstanding that only separate and independent acts done at separate and distinct times were alleged. Moreover, in the present century, where two men were charged with rape and tried together and one of them was convicted, the objection that they should not have been tried together was overruled, the Lord Chief Justice saying that "…… there was no ground for such objection. Many of the acts which constituted the crime happened when both were together upon the scene". ( Baker, 1909,2 Criminal Appeal Reports, page 249 at page 250).
Moreover in 1778 and 1800 it was stated by Hale that it was then common practice for 20 persons to be charged in one indictment for keeping bawdy houses, provided that the word " separalitor" was used in relation to each case (1 & 2 Hale's Pleas of the Crown, page 175): and a similar indictment of several offenders for several offences is mentioned in the 1820 (9th) Edition of Minchin and Herbert's Crown Circuit Companion (the predecessor of Archbold's work).
Turning next to a joint count against two defendants followed in the same indictment by a separate count or counts against one or more of the accused even in relation to a distinct matter ( Cox 1897 18 Cox's Criminal Cases, page 672) Mr. Wrightson conceded that no objection could successfully be taken to such an...
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