9.2.4 Charging common assault

In DPP v Jones [2020] EWHC 859 (Admin), the DPP appealed to the Divisional Court by way of case stated against a decision of the magistrates’ court to refuse permission to amend two charges alleging common assault to add the words, ‘by beating’.

In summary, the defendant, a serving prisoner, was charged with ‘assault’, the allegation being that he spat on a number of prison officers. The prosecution attempted to amend the charge to ‘assault by beating’ to reflect the nature of the allegation. The magistrates’ court refused this application on account that the amendment was sought out of time (the time limit being 6 months – 1980, s 127). 

In the Divisional Court, Stuart-Smith J referred to the authority of R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] EWHC 228 (Admin), in which Dyson J identified that a charge (or more accurately in the magistrates’ court, an ‘information’) can be amended out of time so long as ‘(i) the different offence or offences allege the “same misdoing” as the original offence; and (ii) the amendment can be made in the interests of justice.’ The ‘same misdoing’ was defined by Dyson J as where ‘the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence’. 

The focus for Stuart-Smith J in Jones, therefore, was whether ‘assault by beating’ arose from the same facts as a charge of ‘assault’. At [21], Stuart-Smith J explained that:

it is plain beyond argument that the original offences were based upon allegations that the defendant spat at the two officers and that his spittle landed on them. No one was in any doubt about that, least of all the defendant, because his defence statement addressed these allegations head on as the central substance of the case against him. His defence was that he did not spit at the officers at any time.

His Lordship continued at [23]:

Leaving aside the technically correct observation that an offence of spitting so that the spittle lands should be charged as an assault by battery, there was never any doubt in anybody’s minds that the original offences arose out of allegations that the defendant spat at the officers; so, too, do the new offences.

As a result, the Divisional Court concluded that the amendment to the information should have been permitted and the case proceed on the basis of ‘assault by beating’. 

Comment

This is a particularly interesting decision which plays an important part in our understanding of the phrase ‘assault’. In many circumstances, ‘assault’ is a generic term covering both assault by apprehension, and battery. Indeed, in the case of R (Ward) v Black Country Magistrates’ Court [2020] EWHC 680 (Admin) (a judgment handed down seven days after that of Jones), Hickinbottom LJ concluded that the ‘general description [ie “common assault”] would have incorporated the more specific “battery” or “assault by beating”’. As such, it is questionable whether it was actually necessary to amend the charge at all in Jones. So long as the case proceeded on account of a battery (ie that there was an actual infliction of unlawful force), then the use of the terms ‘assault’, ‘common assault’, or ‘battery’ may be of less importance. This is certainly evident from the case of R (Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin) where the defendant was charged with and convicted of battery, but that finding was made on account that the defendant had threatened the victim, not that he had struck the victim. Had the defendant in Kracher been charged with ‘assault’ or ‘common assault’, it is possible that his conviction would have stood.

In summary, Jones is a useful authority to identify the difficulty associated with the use of the phrase ‘assault’ without further precision. Whilst the charge was properly amended, it is questionable whether such amendment was necessary if, following Ward, the case was proceeded, both factually and in the decision reached, on account of a battery. 

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