"Common assault" in s.40 of the Criminal Justice Act 1988 should be construed to include battery as well as assault. The Court of Appeal so held when dismissing the appeal of Jonathan Simon Lynsey against his conviction at Bristol Crown Court of battery.

Henry, LJ, giving the judgment of the court, said that Lynsey had originally been charged with common assault contrary to s.39 of the Criminal Justice Act 1988. That count, one of damaging property, and one of theft all arose out of the same incident of alleged shoplifting.

Lynsey had pleaded guilty to damaging property and a verdict of not guilty to theft had been entered under s.17 of the Criminal Justice Act 1967.

At the suggestion of the Judge, prosecuting counsel had amended the indictment to charge battery instead of common assault. It was submitted on behalf of Lynsey that that amendment should not have been made, since s.40 of the 1988 Act, which permitted certain summary offences to be charged in an indictment, referred only to "common assault" and not to battery.

In their Lordships' judgment, when the narrow meaning of "common assault" made no sense in the context in which it was used and could not reflect a rational policy it was entirely permissible to prefer the wider meaning of the same phrase, which included battery, and which made good sense and did reflect a rational policy. The indictment had been properly amended.

Various articles and editorials in the Justice of the Peace and Local Government Law have highlighted the growing concern about the charge of common assault. At (1995) 159 JP 445, "Notes of the Week", it is advisable to read those comments in conjunction with this latest case.

At (1995) 159 JPN 445, "Notes of the Week" it states, inter alia, "At page 203 (CPS Charging Standards: A Cynic's View) we published an editorial article which suggested that an unacceptable charging standard has been reached in the light of the statutory and judicial definition of offences such as common assault and assault occasioning actual bodily harm. [See the response by the CPS in the "Correspondence" column at p.423.1" At (1995) 159 JPN 463 a letter from Walmsley and Barnes, Solicitors of Margate, Kent, refers to CPS Charging Standards. They write:

"In this area, there has been substantial concern that the CPS are routinely down-grading any charge of assault to common assault and then inviting the justices, effectively, to sentence on the basis of the original charge.

Further, there are complaints from victims of assaults that offenders have the original appropriate charge down-graded to common assault and then escape with derisory fines and compensation. At the moment, a client is considering whether he should instruct us to make a formal complaint about the conduct of the CPS in taking this step without consulting him, the assaulted person."

There is no doubt that for some time police officers too have been concerned about charging standards regarding assault, see "The Metropolitan Police Assault - Charging Offences - Are they based on law?" John Woods, (1995) 159 JPN 42. Hopefully the airing of these views will result in a better charging procedure being adopted; clearly if injury worthy of a charge of ABH is apparent, that should be the charge however convenient it may be for some or all of the parties to down-grade. The CPS Standards were published in Justice of the Peace at (1994) 158 JPN 554 et seq.

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