Injury relevant in assault cases
Regina v Nottingham Crown Court, Ex parte Director of Public Prosecutions
(1995) The Times 5 October Queen's Bench Division
The Facts
The facts taken from the judgment of LORD JUSTICE STUART SMITH were that in sentencing the judge commented that an assault that resulted in injuries should be charged as an offence of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. He stated that a charge of common assault contrary to section 39 of the Criminal Justice Act 1988 did not include injury.
His approach was indicated in the decision of the crown court which recorded : "Common assault does not include injuries when sentence is given, therefore the bench reduces the sentence."
The burden of the Crown Prosecution Service's case was that there was a divergence of practice between different courts in the country and uncertainty In the CPS itself as to what course they were to pursue.
The Law
The principal question was whether, the prosecution having elected to charge the lesser offence, the court was precluded from considering the consequences to the victim of the assault simply because a more serious charge could have been brought.
Assault by beating necessarily involved some blows struck upon the victim but resulting injury was not a necessary ingredient of the offence, although it had to be rare for a blow of any severity not to cause some harm.
In his Lordship's judgment, it was a cardinal principle of sentencing that the court should take into account, when considering the gravity of the offence and the appropriate sentence, the consequences to the victim.
That was because one of the purposes of the criminal law was to assuage the feelings of victims and their friends and relations.
The law had to redress their grievance by inflicting an appropriate punishment and then there was no excuse for the victim or his friends to exact their own retribution.
Moreover, it was not necessary in all cases to add a count to the indictment to reflect such conduct provided that the court's sentencing powers were adequate to reflect the actual gravity of the offending.
That principle was exemplified in a number of guideline cases on sentencing: for example, Attorney-General's Reference (No I of 1989) [1989] 1 WLR 1117) and R v Mussell [1991]1 WLR 187). The applicant was entitled to the declaration.
The Decision
It was a cardinal principle]e of sentencing that the court should take into account the consequences to the victim when considering the gravity of the offence and the appropriate sentence.
The Court so held in making a declaration, sought by the Director of Public Prosecutions, that the approach of Judge Pitcher sitting with lay justices at Nottingham Crown Court when hearing an appeal against sentence from Worksop Justices, that on a charge of common assault, injuries sustained by the victim would not be taken into account in sentence, was erroneous in point of law.
COMMENT
This decision appears to be erroneous. The Divisional Court in DPP v Taylor; DPP v Little (1991) 155 JP 713 held, that all common assaults and batteries are now offences contrary to the Criminal Justice Act 1988, S.39 and, that the information must include a reference to that Section. An information would be bad for duplicity if the phrase "assault and battery" were used; the court suggested that "assaulting by beating" was the approved wording. The moral of the story is, as it always was - if you have harm, charge "harm". The problem is of course that common assault is summary ONLY whereas ABH. is triable either way.
Rob Jerrard