Walton, R. v

Under Criminal Justice Act 1988, section 40(1), a count may be joined with other counts only where it arises from the same facts or evidence, or forms part of a series of offences of the same or similar character. A common-assault count joined outside those limits is wrongly joined and its sentence must be quashed.

Although section 4 of the Criminal Appeal Act 1968 permits a lawful reallocation of sentence without increasing the total, the appellate court is not required to redistribute the quashed sentence. An admission of the improperly joined offence does not itself provide a basis for doing so.

The applicant pleaded guilty at Sheffield Crown Court to handling stolen goods, common assault and breach of a suspended sentence. While being questioned about the handling allegation, he abused police officers and threw a hard plastic shoe at PC Middleton, causing fear, shock and chest soreness.

He received four months’ imprisonment for common assault, consecutive to six months for handling stolen goods, and a further two months for breach of the suspended sentence. He appealed on the basis that the common-assault count had been wrongly joined to the other counts. The central issue was the consequence of that misjoinder for the sentence and whether the court should redistribute the four-month term.

1. Appeal allowed. The common-assault count was wrongly joined with the handling-stolen-goods count. It neither arose from the same facts or evidence nor formed part of a series of offences of the same or similar character. It therefore failed to satisfy section 40(1) of the Criminal Justice Act 1988.

2. The court treated R v Hopton Lewis (1992) 95 Cr.App.R. 131 as clear authority confirming that conclusion. The sentence of four months’ imprisonment imposed consecutively for common assault had to be quashed.

3. Section 4 of the Criminal Appeal Act 1968 gave the court technical power to increase the handling-stolen-goods sentence by reallocating the four months, provided that the overall term was not exceeded. The court declined to exercise that power. There was no basis to redistribute the term, notwithstanding the applicant’s admission that he had assaulted the officer.

4. Count 3 and its four-month sentence were quashed. The unchallenged sentences of six months for handling stolen goods and two months for breach of the suspended sentence remained, leaving a total of eight months’ imprisonment.

• Court of Appeal (Criminal Division) — in [2011] EWCA Crim 2832, allowed the appeal, quashed the common-assault count and its consecutive four-month sentence, and left the remaining sentences in force.

• Sheffield Crown Court — accepted guilty pleas to common assault, handling stolen goods and breach of a suspended sentence; the applicant received consecutive terms totalling 12 months’ imprisonment.