‘A General Description’: Incorporating Battery Into a Generic Charge of Common Assault: R (on the application of Ward) v Black Country Magistrates’ Court [2020] EWHC 680 (Admin)

Abstract

Keywords

Common assault assault battery assault by beating

Section 39(1) of the Criminal Justice Act 1988 provides that:

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

Ward was a renewed application for judicial review against the fairness of the claimant’s conviction for assault. In particular, it concerned the circumstances where a defendant is charged with ‘common assault’ and that charge then proceeds on the basis of a battery.

The material facts of this case, leading to the charge of common assault, are not available in the judgment at the time of writing. The transcript merely provides that Craig Ward (W) ‘was involved in an altercation with a number of other men’ (at [2]) which led to his arrest and the charge of common assault. This lack of factual matrix is likely intentional here given that they are in no way relevant to the judicial review claim, or to the safety of his conviction. The focus, in terms of background information, is on how the trial proceeded against W.

Initially, W was charged as follows:

On 28/11/2017 at Walsall in the County of West Midlands assaulted Jamie Taylor. Contrary to section 39 of the Criminal Justice Act 1988. (Common Assault)

W, having not attended court, was arrested by police and presented to the court several days later. W alleged that due to a state of anxiety, he was unfit to participate in the hearing and refused to enter a plea. It is at this stage that the background information becomes pertinent. According to the court record, the charge against W was amended as follows:

On 28/11/2017 at Walsall in the County of West Midlands assaulted Jamie Taylor by beating him. Contrary to section 39 of the Criminal Justice Act 1988. (original emphasis)

Importantly, W claimed that this alteration of charge was not made in his presence. This allegation would form the basis for the judicial review claim.

W was later tried and convicted of assault by beating in the magistrates’ court in his absence. The judgment notes that this conviction was later set aside, however no reasons are listed for that course of action. Subsequently, W was retried, again in his absence, and convicted of assault by beating once more.

W sought judicial review proceedings against the Black Country Magistrates’ Court (MC) on account that his trial was procedurally unfair, and thus his conviction unfair, as a breach of natural justice and Article 6 of the European Convention on Human Rights. Specifically, W contended that he had been convicted of an offence with which he was not charged (ie he was charged with ‘common assault’ but convicted of ‘assault by beating’). W, alleging that the charge had not been amended in his presence, contended that because he had not prepared his case in light of assault by beating, he was seriously disadvantaged at trial.

Held, dismissing the application, W’s conviction was safe; no procedural unfairness took place. Lord Justice Hickinbottom, providing the leading judgment of the Court, concluded first that he was satisfied that the charge against W was amended in his presence. The case was open and closed in that regard: ‘That amendment made the case against him clear: the basis of it was a battery strictly so-called’ (at [13]). His Lordship then set out the position even if the charge had not been amended in W’s presence. In particular, his Lordship noted that had the charge remained one of common assault: ‘that general description would have incorporated the more specific “battery” or “assault by beating”’ (at [14]).

Lord Justice Hickinbottom continued (at [14]):

We have not seen the evidence; but there is nothing to suppose that, as is usual, the initial charge of assault involved an allegation, supported by the evidence, that the Claimant had used unlawful force on the complainant. The conviction of “assault by beating” would therefore have been open to the magistrates, in any event; and the Claimant did not suffer any possible prejudice or unfairness. He says that he did not know the particulars of the offence against him, but it could be safely assumed from the charge that he was being charged with actually using unlawful force. In any event, there is no evidence that the preparation of his defence would have materially altered if he had known that the allegation against him had been confirmed as actual violence or merely the threat of imminent violence; for example, because there was some point of law or issue of fact that he would have investigated or pursued that he did not in fact investigate or pursue, or he would have attended or been represented at his trial.

In this respect, W’s conviction for battery was safe, there was no procedural unfairness and his application was refused (at [16]). Mrs Justice Andrews agreed at [17].

Commentary

At a modest four pages, comprising 17 paragraphs, Ward is largely an uncontroversial case. Certain aspects of the judgment, however, are worthy of comment. In particular, we can examine Hickinbottom LJ’s remarks that a charge of battery is ‘incorporated’ into a charge of common assault and his acceptance of proceeding on a general basis of common assault. A word or two will be worthwhile on academic debate concerning common assault as a statutory or common law offence.

‘Common Assault’, ‘Assault’ and ‘Assault by Beating’

It is widely accepted that ‘common assault’ is a general term covering two distinct offences, namely assault (often referred to as ‘technical’ or ‘psychic assault’, see Glanville Williams Textbook of Criminal Law (Stevens & Sons, 1978)) and battery. Indeed, the word ‘assault’ itself is commonly used to refer to a mass of different offences, for example, reference to an ‘assault’ could be used to indicate an offence of assault occasioning actual bodily harm (ABH), contrary to s 47 of the Offences Against the Person Act 1861. For the purposes of ‘common assault’, however, the law ‘draws a distinction…between an assault and a battery’ (per Goff LJ in Collins v Wilcock [1984] 3 All ER 374 at 377). Indeed, a charge of ABH contrary to s 47 may be founded upon proof of either an assault or a battery. The word ‘assault’ in that case is used as an umbrella for those two manifestations.

In Ward, Hickinbottom LJ began by accepting that while there is a distinction between the offences of assault and battery, with s 39 identifying two subtle but distinct offences, the case law needed to be treated ‘with care’ (at [10]). At [11] his Lordship explained:

That the word “assault” is often used effectively as an abbreviation for “assault and battery”, and certainly used to include “battery” strictly so-called, has been consistently recognised by the courts, and recognised as something unobjectionable.

Indeed, in the earlier case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, James J explained that (at 444):

Although ‘assault’ is an independent crime and is to be treated as such, for practical purposes today ‘assault’ is generally synonymous with the term ‘battery’ and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case the ‘assault’ alleged involved a ‘battery’.

Importantly, however, Hickinbottom LJ went on to identify that ‘a defendant must know the case he is facing’ (at [12]). His Lordship referred to the important case of R (Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin), in which the claimant, charged and convicted of common assault, was successful in his judicial review claim on account that he had been convicted of assault, but the charge against him had proceeded on the basis of battery. To be specific, the Crown brought the charge on account that Kracher had struck the victim. The magistrates accepted, however, that they could not agree whether the defendant had struck the victim, but they were confident that he had threatened the victim. The conviction was thus based upon the threat, and not an actual strike. In light of this, the prosecution conceded that the magistrates should not have convicted. The concession was not made on the basis that the threats made could not amount to common assault but because that was not the basis of the charge or the way in which the case was put. On that reasoning, the conviction was set aside.

In the case of Ward, however, there was no dispute over what basis the charge of common assault was being brought. Lord Justice Hickinbottom accepted, with little difficulty, that the charge had been brought on account of assault by beating; the court records showing that the charge had been amended to reflect that. That aspect of the judgment is not in contention, however. What may be more contentious is his Lordship’s comment that a charge of battery is ‘incorporated’ into a charge of ‘common assault’.

Incorporating ‘Battery’ Into ‘Common Assault’

As noted above, his Lordship explained that the ‘general description’ of common assault would have ‘incorporated’ the more specific charge of assault by beating. In addition, his Lordship acknowledged that there was no evidence to suggest that the case was brought on any other basis.

His Lordship appears to be suggesting, therefore, that it would be perfectly proper to charge a defendant with ‘common assault’, as opposed to a more specific charge such as ‘assault by beating’ as in DPP v Taylor; Little, so long as the charge proceeded on the basis of that with which he was convicted. His Lordship’s use of Kracher adds support to this reading. One might say, therefore, that the use of the generic charge of ‘common assault’ was not contentious for Hickinbottom LJ; it is the basis upon which that charge proceeds at trial that would raise potential cause for concern. In Kracher, for example, the trial proceeded on account of battery and the defendant was convicted of assault; this was an unlawful process. In Ward, however, the trial proceeded on account of battery, and the defendant was convicted of battery; this was not unlawful.

While it is certainly advisable, and best practice, that a charge be brought with appropriate specificity (ie ‘assault’, or ‘assault by beating’), so long as the prosecution case is brought on a particular basis, the trial proceeds on that basis, and the decision of guilt or innocence is made solely on that basis, there will be no ground to complain.

A Common Law or Statutory Offence?

While not an aspect of the judicial review claim, Hickinbottom LJ did take the opportunity to address one of the academic debates surrounding the offence of common assault, namely: Is it a common law or statutory offence?

Lord Justice Hickinbottom chose not to comment on whether s 39 had the effect of rendering common assault statutory offence or not. At [9] his Lordship noted that a ‘widely held claim’ is that they are statutory offences. Reference by Hickinbottom LJ to ‘academic debate’ is to the dichotomy between two Divisional Court judgments: DPP v Taylor; DPP v Little [1992] QB 645 and Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890. In Taylor; Little, the Divisional Court made clear that both offences are based in statute. Mann LJ explained that (at 653 of the judgment):

My conclusion upon the question of whether the offences of common assault and battery are statutory offences is that they are and have been such since 1861 and accordingly that they should now be charged as being “contrary to section 39 of the Criminal Justice Act 1988”.

In Haystead, however, Laws LJ explained (at [4] of Haystead) that ‘[a]lthough the charge referred to s 39, in truth, common assault by beating remains a common law offence’.

The latter approach in Haystead appears to have been preferred by both the Court of Appeal in Cross v DPP (CA, 20 June 1995) and by the Law Commission in its 2015 Report, ‘Offences Against the Person’ (Law Com No 361, 2015). In this Report, the Law Commission note that:

[Assault and battery] continue to be common law offences, we conclude, even though Criminal Justice Act 1988, s 39 provides for the mode of trial and maximum penalty.

Given his Lordship’s use of ‘widely held claim’ that assault and battery are offences based in statute, perhaps this is an indication from Hickinbottom LJ that he believes the same. In any event, this point was not relevant to the appeal. His Lordship therefore did not offer a conclusive view. This is a missed opportunity for Hickinbottom LJ to add another Divisional Court opinion into the mix on the statutory or common law question.

Conclusion

While it remains, for the most part, an uncontroversial authority, Ward supplies an interesting addition to the ever-present debate around the phrase ‘common assault’. Furthermore, Hickinbottom LJ has indicated that there is nothing wrong in substance with a generic charge of common assault, so long as that charge proceeds on an identifiable basis (ie assault or battery) and guilt or innocence is determined in accordance with that identifiable basis.

Mark Thomas