Plant, R. v

A properly brought indictment cannot ordinarily be quashed before trial because the defence contends that the prosecution evidence will be insufficient. That issue is for the trial process, subject to recognised objections to the indictment itself.

Offences may be joined where they form a series of the same or similar character. A properly joined summary offence remains for the jury even if an associated indictable count is withdrawn after the prosecution case. Section 40 of the Criminal Justice Act 1988 is procedural and operates when the indictment is framed; a directed acquittal does not amend the indictment or require remittal of the summary count.

The appellant was convicted at Preston Crown Court of assault by beating. The jury acquitted him of one alleged breach of an anti-social behaviour order, and the judge directed an acquittal on a further alleged breach. He was fined £100 and ordered to contribute £150 towards prosecution costs.

With leave of the single judge, he appealed against conviction. He challenged the pre-trial refusal to quash one count, the joinder of counts arising from separate incidents, the alleged prejudice caused by the anti-social behaviour order, and the retention of the summary assault count after the directed acquittal on the related indictable count.

1. Appeal dismissed. The court upheld the conviction for assault by beating. It made no order for the Crown's costs of the appeal.
2. A pre-trial application to quash a properly brought count because the anticipated prosecution evidence may not establish guilt was procedurally inappropriate. The court endorsed the established rule that an accused must be arraigned and tried unless there is a recognised objection to the indictment or the court's jurisdiction. The later directed acquittal on count 2 did not show that the judge should have prevented the prosecution from presenting its evidence.
3. The conduct alleged on count 2, including threats and pushing a recording device close to the police officer's face, was capable of breaching the relevant anti-social behaviour order. The court noted that the officer's subjective lack of alarm did not retrospectively require a pre-trial ruling that there was no case to answer.
4. The two incidents were properly joined under Rule 9 of the Indictment Rules. Viewed overall, each involved alleged abusive conduct towards a person in authority and formed part of a series of offences of similar character. With an appropriate direction, the jury could separate the allegations, so the joinder caused no unfair prejudice.
5. Section 40 of the Criminal Justice Act 1988 permitted the summary battery count to be included with the indictable counts. The battery was the final incident in conduct of the same general kind. Section 40 concerns the form of the indictment when drawn. A directed not-guilty verdict on an indictable count does not strike that count from the indictment, invalidate the original joinder, or require the remaining summary count to be withdrawn and retried before magistrates.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Crown Court at Preston: on 24 April 2007 the appellant was convicted of assault by beating; he was sentenced on 9 October 2007. No lower-court citation was stated in the judgment.