Neutral Citation Number: [2013] EWCA Crim 2596
No. 2013/05373/C4
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  5  December  2013
B e f o r e:

LORD  JUSTICE  McCOMBE

MR  JUSTICE  GRIFFITH  WILLIAMS

and

THE  RECORDER  OF  NEWCASTLE
(His Honour Judge Goss QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A

- v -

LEROY  LEWIS
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Mr T Dyke appeared on behalf of the Appellant

Mr J Boyd appeared on behalf of the Crown
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J U D G M E N T
LORD JUSTICE McCOMBE:  

1.  On 10 April 2013 at Camberwell Magistrates' Court the appellant was committed on his own election to the Crown Court for trial on one charge of attempted theft.  Two charges of common assault, which it is accepted were founded on the same facts and evidence as the attempted theft, were joined in the indictment pursuant to section 40 of the Criminal Justice Act 1988.  On 22 May 2013 at the Inner London Crown Court before His Honour Judge Burn the appellant was arraigned on an indictment which, as is accepted, was properly preferred and stamped as received in that court on 7 May 2013.  It contained three counts: count 1, attempted theft of property belonging to Mr Rasendram Sujeevan; count 2, common assault on Mr Sujeevan; and count 3, common assault on Police Constable Turner.  He pleaded not guilty and, as we understand it, at that stage, on the Crown offering no evidence on count 1, a formal verdict of not guilty on that count was directed and entered in the court records in the usual way.

2.  Owing to listing difficulties at the Inner London Crown Court, the appellant's trial on the remaining counts (counts 2 and 3) was listed at the Central Criminal Court before Her Honour Judge Joseph QC on 18 September 2013.  Prior to the start of the trial, the judge raised the question of whether the jury could be put in charge of an indictment which contained "summary only" charges.  It was submitted for the defence that the indictment was no longer valid and that the trial could not proceed.   After hearing argument the judge rejected the defence submission.  On 20 September 2013 the appellant was convicted of common assault on Mr Sujeevan (count 2), but was acquitted of the alleged assault on PC Turner (count 3).  He now appeals against his conviction on count 2 by leave of the single judge on the basis that the learned judge's pre-trial ruling to which we have referred was wrong and that the indictment was accordingly a nullity.  In our judgment there is no substantive merit in the appeal and, apart from the dry issue of law as to the validity of the indictment, it is not suggested that the conviction is unsafe.  Mr Dyke has argued that dry issue of law on paper and orally with fortitude and skill.

3.  The factual background, briefly, was this.  At 6pm on Friday 10 August 2012 two police officers, one of whom was PC Turner, attended the High Street in Norwood following a call from Mr Sujeevan, the manager of a local shop.

4.  The Crown case was that the appellant, who was drunk, had entered the shop and picked up some alcoholic drink for which he did not have the funds to pay (count 1 of the original indictment).  When challenged, he swore at the shopkeeper and punched him in the chest with his fist (count 2).  For a few seconds the shopkeeper was stunned and short of breath.  After hearing his account, the officers drove to a nearby road where they found the appellant.  He was asked for his account but refused to co-operate.  He became abusive and aggressive.  PC Turner took hold of his arm in order to arrest him, but the appellant pulled his arm back and slapped the officer to the jaw (count 3 of which he was acquitted).  

5.  The appellant was arrested.  When he was interviewed under caution he gave the account which he ultimately gave at the trial.

6.  Mr Sujeevan gave evidence of the events of the evening.  However, PC Turner was not available to attend the trial.  The officer in the case (a different officer) gave evidence as to the investigation that had been undertaken.

7.  The defence case was denial.  The appellant gave evidence that he was not drunk.  He attempted to purchase a drink in the shop and found that he was short of money.  He asked the shopkeeper for credit as he was a regular customer.  His case was that the shopkeeper was rude and abusive.  The appellant left the shop.  There was an altercation, but no physical contact.  The complainant's account was a fabrication.  Thereafter the police officers had approached him in a nearby park. He was with his dog.  An officer went to touch him (the appellant) and he was concerned that the dog might retaliate.  He denied assaulting the officer, but accepted that he may have touched him during this incident.

8.  The issue for the jury was one of fact on each count.  They convicted on count 1 (count 2 of the original indictment) and acquitted on count 2 (count 3 of the original indictment), where the victim did not attend.

9.  In short, the submission on behalf of the appellant is that the Crown Court had no jurisdiction to try the two assault charges once the not guilty verdict had been entered as a result of the Crown offering no evidence at the plea and case management stage.  In our judgment, in spite of Mr Dyke's argument, there is nothing in this submission.  There is no dispute that the indictment was properly preferred and signed.  It was valid in form and content.  In short, that document remained the indictment in the case, notwithstanding the procedural course that followed once the case arrived in the Crown Court.  It was on that indictment that the appellant was tried and convicted on one of its remaining counts and acquitted on the other.  It mattered not, in our view, that for the convenience of presentation the Crown placed before the jury an extract from the indictment setting out the charges that remained live.  It would have been senseless, and contrary to normal efficient management of cases in the Crown Court, to put before the jury a document which had as its first charge a matter which they were not required to consider.

10.  Having set out our conclusion on the appeal, we will set out the statutory background to the point now raised and will summarise the three cases touching upon, but not deciding, the point before us.

11.  Section 40 of the Criminal Justice Act 1988 so far as relevant provides as follows:

"(1)  A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge -

(a)	is founded on the same facts or evidence as a count charging an indictable offence;

....

(2)  Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him.

(3)  The offences to which this section applies are:

(a)	common assault;

...."

12.  It can be seen that the indictment in the instant case quite properly charged the three offences sent from the magistrates' court, one of which was an offence triable either way (count 1, attempted theft).

13.  The first case in time to which we refer is R v Bird [1996] RTR 22.  The facts were as follows.  The appellant, while driving a car, was stopped by a police officer.  The officer had obtained information that the appellant was a disqualified driver.  When he searched the car he found a 2ft wooden pole which the appellant said that he kept for his personal protection.  The appellant pleaded not guilty in the Crown Court to the first count on an indictment (having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953) and guilty to the second count (driving while disqualified, contrary to section 103 of the Road Traffic Act 1988).  He also pleaded guilty to a charge committed to the Crown Court under section 41 of the Criminal Justice Act 1988 (having no insurance, contrary to section  143 of the Road Traffic Act 1988).  The prosecution proceeded to offer no evidence on the offensive weapon charge, and a verdict of not guilty was duly entered.  The appellant was conditionally discharged and disqualified for twelve months for driving while disqualified, and conditionally discharged for twelve months concurrently for the offence of having no insurance.  Two questions arose on those facts: first, was the charge of driving while disqualified (a summary only offence) properly added to the indictment charging the offensive weapon offence (an offence triable either way)?  Secondly, once count 1 had resulted in the acquittal, did the Crown Court retain the power to deal with the offence of no insurance, or should it have been remitted to the magistrates' court?  The court (Lord Taylor of Gosforth CJ, McKinnon and Judge JJ) held that the charges were properly joined.  On the second question McKinnon J, giving the judgment of the court said this: 

"In the instant case the indictment properly contained two counts.  The appellant was convicted on count 2 by his own plea, but acquitted on count 1.  He was, therefore, convicted on the indictment within section 41(5).

Section 40(2), so far as material, provides:"

(His Lordship set out that subsection which we have already quoted.)

"It is plain, in our judgment, that count 2, being properly joined in the indictment, was to be treated as if it were an indictable offence just as much as count 1 was.  Thus, a conviction on count 2 brought into operation section 41(5), enabling the Crown Court to sentence on the no insurance offence, if the other conditions in section 41 were satisfied, which in this case they undoubtedly were.  Thus, count 2 was properly joined and the appellant was convicted on the indictment.  The Crown Court therefore had power to sentence as it did, both in respect of count 2 and the no insurance offence."

It can be seen that in that case the appellant had not been put in charge of any jury.  It is clear that, absent the plea of guilty, the court would still have thought that the offence could properly be tried in the Crown Court by virtue of section 40(2).

14.  The next case is R v Plant [2008] 2 Cr App R 27 (page 386), [2008] EWCA Crim 960.  In that case the appellant was convicted at the Crown Court of a summary offence after the indictable offence with which it had been joined had been withdrawn from the jury after a successful submission of no case to answer on the indictable charge had been upheld by the trial judge.  It was submitted that once that submission of no case had been accepted, that effectively removed the count from the indictment and there was nothing to which the summary offence could remain properly joined for the purposes of section 40 of the 1988 Act.  The court (Lord Phillips of Worth Matravers CJ (as he then was), Wilkie and Openshaw JJ) answered the point as follows:

"28.  ....  Section 40 is a procedural provision.  It deals with joining a summary offence with an indictable offence in the same indictment.  It is relevant to the stage at which the indictment is drawn up.  It does not follow that if at the end of the prosecution case there is found to be no case to answer in relation to the indictable offence, that the summary offence has to be withdrawn from the jury and retried before the magistrates.  Such a course would be wasteful of resources and in conflict with the desirability of processing criminal proceedings promptly.  Even if the appellant had been charged only with counts 2 and 3, we do not consider that the effect of withdrawing count 2 from the jury at the close of the prosecution case meant that count 3 could no longer be the subject of the jury's verdict.

29.  The fallacy in Mr Neale's [counsel for the appellant] submissions is the suggestion that the effect of directing the jury to enter a not guilty verdict on count 2 was to amend the indictment by striking out that count.  That is not the case.  Notwithstanding the not guilty verdict on count 2, the indictment remained in the same and proper form.  The fallacy of the argument is underlined by the answer that Mr Neale gave to us when we asked the question: 'What would happen if at the end of the trial the jury returned a not guilty verdict on the indictable offence, but had not yet reached a decision on the summary offence?'  Mr Neale submitted that the correct course there also would be to withdraw the summary offence from the jury and remit it to the magistrates.  But for the reasons we have given, no such action would have been required or appropriate.  The indictment would have remained in the form in which it originally was and in that form it justified the joinder of count 3."

15.  In our judgment the passage particularly at paragraph 28 is strongly indicative of the proper answer to the problem before us.  Section 40 is relevant to the stage at which an indictment is drawn up.  Once the indictment is preferred, it remains the indictment before the court.  The loss of one charge by reason of an acquittal, either by a jury verdict at the conclusion of the trial, or on earlier judicial direction, or on the entry of a formal verdict on the offering of no evidence on that charge at whatever stage, does not remove the count from the indictment.  It remains in the indictment on which the defendant is charged and tried.

16.  Finally, we refer to R v Iqbal [2012] EWCA Crim 766.  There the facts were rather more remote from the facts of the instant case than were the facts of Plant.  The appellant faced one charge of causing grievous bodily harm with intent said to have been committed at nightclub premises.  At the close of the Crown case the judge rejected a submission of no case to answer on that charge.  Nonetheless, on the following day the Crown informed the judge that they no longer sought a conviction on that offence, but sought to add a second count of assault by beating which arose out of an incident earlier that evening at the same premises - a charge which was supported by CCTV footage.  The judge allowed the amendment.  In respect of that charge the appellant contended that he had acted in self-defence.  The jury rejected that contention and convicted him. It seems that the Registrar of the Court of Appeal raised the point that, under section 127 of the Magistrates' Courts Act 1980, the magistrates' court could not have tried an information or hear a complaint unless the information was laid or the complaint made within six months from the time of the offence or from the time when the matter of complaint arose.  Among a number of points taken on the appeal, it was argued that the judge had been wrong to permit the amendment, inter alia, because of the time-bar in section 127 of the 1980 Act.  The court (Gross LJ, Blake J and the Recorder of Redbridge) referred to paragraph 28 of the judgment in Plant, which we have already quoted.  It then cited the following passage from Archbold at paragraph 1-134:

"Section 40 is a procedural provision enabling the inclusion in an indictment in certain circumstances of a count charging a summary offence together with a count validly charging an indictable offence; if the conditions for inclusion are met, the Crown Court can proceed to try the summary offence, notwithstanding an acquittal at some point during the trial in respect of the indictable offence, because an acquittal does not have the effect of amending the indictment or retrospectively invalidating the satisfaction of the conditions for the inclusion of the summary matter ...." (Mr Dyke's emphasis) 

At paragraph 27 Gross LJ said:

"1.  We can see no material difference between Plant and this case.  Having regard to the principle in Plant it cannot matter that here the Crown was not proposing to proceed further with the count charging the indictable offence. At the stage when the count of common assault was added there was still jurisdiction to add it.  The jury was still seized of the section 18 count.  As observed in the passage already cited from Archbold, the outcome of the section 18 count did not have the effect of retrospectively invalidating the satisfaction of the condition for the inclusion of the summary matter."

Mr Dyke fastens on that passage and on another passage in that case to submit to us that the important point was that the jury was put in charge of the matter and that the indictment on which the appellant was tried included the charge that was properly before the Crown Court.

17.  Thereafter, in Iqbal, the court was occupied with the question of whether the new charge was indeed founded upon the same or substantially the same facts as the original charge, and whether there was or would be prejudice caused to the appellant by the addition of the new charge.  No such points arise in the instant case.  It is sought to argue that the distinction, as we have indicated, between Plant and Iqbal on the one hand, and the instant case on the other, is that in the earlier two cases the accused had been put in charge of the jury and the trial had begun.  We note that that was not the case in Bird.  In his helpful Advice on Appeal Mr Dyke argues that section 40 of the 1988 Act is "a mechanism for putting the jury in charge of a valid indictment".  Mr Dyke cites R v Hodges (unreported, 5 June 1981), in which Peter Pain J delivering the judgment of the court said this:

"It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed."

We agree, but the indictment in the instant case was preferred and signed, and it remained the same throughout.

18.  In our judgment these points are no answer to the fact that there was a valid and preferred indictment.  All the charges were properly joined.  The fact that for later procedural reasons only summary charges were left for trial by the jury did not deprive the indictment of validity.  We agree with the submission of the Crown in the Respondent's Notice that the words of section 40 of the 1988 Act give no indication that to found jurisdiction the defendant must be put in the charge of a jury on charges which include at least one triable on indictment from the outset.  The section does not say that.  In Plant Lord Phillips CJ said that the section is directed to the stage when the indictment is drawn.  To hold the contrary is simply to apply the retrospective invalidation of an indictment correctly drawn because of a pre-trial acquittal of one of the offences.  We can see no justification for reading the section in that way.  Nor can we see that any purposive approach to the statute calls for any different result.

19.  For these reasons this appeal is dismissed.

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