Katsonis v Crown Prosecution Service

On a case-stated appeal, a defendant may in principle be convicted of reckless assault even where the prosecution case alleges an intentional assault. The conviction must nevertheless rest on findings identifying both the relevant bodily movement and why it was unlawful. A finding that the defendant merely reached out in a crowded train does not, without more, establish unlawful conduct or a risk of unlawful violence. Where the magistrates’ reasoning does not disclose the unlawful act founding the conviction, the conviction cannot stand.

The appellant was convicted by magistrates of common assault after an incident on a crowded commuter train. The prosecution alleged that he deliberately punched the complainant. The magistrates rejected, or failed to find, a deliberate punch, but convicted him on the basis that he had foreseen a risk of unlawful violence and had taken that risk by reaching out.

The appellant appealed by case stated. The questions were whether conviction for reckless assault was open despite the prosecution case being one of deliberate assault, and whether there was evidence that he could reasonably have foreseen a risk of unlawful violence.

1. Appeal allowed. The conviction was quashed because the magistrates’ findings did not identify an unlawful act capable of constituting common assault.
2. In principle, magistrates may convict on the basis of recklessness where the prosecution has charged and alleged a deliberate assault: D v DPP [2005] EWHC 967 (Admin). The court’s answer to the first question therefore did not itself require the appeal to succeed.
3. The magistrates had found contact by the appellant’s hand after he had reached out. They had not found that he threw a punch or that his arm was flailing. Reaching out to help his wife, or to support himself against movement of the train, was not inherently unlawful.
4. The evidence could have supported a finding that the appellant had punched towards the complainant without intending contact, or had flailed about in an agitated manner and thereby risked striking someone. The magistrates had made neither finding. Their reasoning therefore failed to explain what unlawful conduct they had found.
5. The position was analogous in principle to Cooper v the DPP, where the conviction was quashed because the magistrates had not identified the bodily movement producing the reckless assault. Here, the movement was identified, but its unlawfulness was not.
6. The conviction was quashed. The prosecution was given seven days to decide whether to seek a retrial. If sought, the matter was remitted for rehearing before a different bench; otherwise the conviction would remain quashed. The question of costs out of Central Funds was to appear in the order following consultation with another judge.

• High Court (Administrative Court) — allowed the case-stated appeal against the magistrates’ conviction, quashed the conviction and provided for a possible retrial before a different bench.