Tierney & Anor, R. v

Where a jury has convicted of assault occasioning actual bodily harm, its verdict necessarily establishes common assault if that lesser offence was available on the evidence. If the conviction for the greater offence is unsafe because the alternative should have been left, the Court of Appeal may quash it and substitute convictions for common assault.

R v Coutts [2006] UKHL 36 required a new approach to alternative verdicts. A complaint concerning a pre-Coutts trial, raised after the ordinary appeal process has ended, should normally be considered as a change-of-law case.

The appellants, then serving police officers, were convicted at Chester Crown Court on 19 April 2005 of assault occasioning actual bodily harm. The prosecution alleged that they assaulted Mr Mayers during a hotel Christmas party and that he was rendered unconscious and marked on the neck.

Common assault was not charged. Although the trial judge initially considered leaving it as an alternative, he accepted defence submissions that this would be unfair after the case had been conducted solely as one of assault occasioning actual bodily harm. When the jury asked whether it could convict of assault without actual bodily harm, the judge said that no such option was available.

After ordinary applications for leave had failed, the Criminal Cases Review Commission referred the convictions under section 9 of the Criminal Appeal Act 1995. The central issues were whether the convictions remained safe and whether convictions for common assault should be substituted.

1. The appeals were allowed. The jury’s question realistically indicated that one or more jurors may have doubted whether actual bodily harm had been proved. The Crown did not support the convictions. The convictions for assault occasioning actual bodily harm were therefore unsafe and were quashed.

2. The court substituted convictions for common assault. A jury could not have convicted of assault occasioning actual bodily harm without first being sure that Mr Mayers was the victim of at least a common assault for which both appellants were responsible. Its verdict necessarily resolved that issue against them. R v Harris was materially different and did not affect that conclusion.

3. The trial judge had acted fairly and in accordance with the approach then understood to govern alternative verdicts. Nevertheless, R v Coutts [2006] UKHL 36 had required a new approach. It had, in practical effect, removed the authority of the earlier approach in R v Maxwell [1988] 1 WLR 1265. The court approved the analysis in R v Foster and Others [2007] EWCA Crim 2869 that the former test was no longer applicable.

4. The court further indicated that a late application based on a pre-Coutts failure to leave an alternative verdict should normally be approached as a change-of-law case, applying the principles identified in R v Cottrell and Fletcher [2008] 1 Cr App R 107. The Commission was invited to have regard to those principles in comparable references.

5. On resentencing, the community punishment orders and costs orders remained. The common assaults were serious, involving public violence by serving police officers, and the trial had been fully contested. Compensation was reduced to £250 payable by each appellant because the substituted convictions did not include actual bodily harm.

• Court of Appeal (Criminal Division) On a reference by the Criminal Cases Review Commission, the court quashed the convictions for assault occasioning actual bodily harm and substituted convictions for common assault: [2009] EWCA Crim 2220.
• Crown Court at Chester On 19 April 2005, the appellants were convicted of assault occasioning actual bodily harm and later received community punishment, compensation and costs orders.