Lewis, R. v

Criminal Justice Act 1988 section 40 is a procedural provision governing the inclusion of a summary offence in an indictment. Where the counts were properly joined when the indictment was preferred, a later acquittal or formal not-guilty verdict on the indictable count does not amend, invalidate, or retrospectively deprive the indictment of its validity. The Crown Court may therefore try the remaining summary count. This remains so where the acquittal occurred before the jury was put in charge, provided that the original indictment was validly preferred and signed.

The appellant was committed to the Crown Court on a charge of attempted theft. Two common-assault counts, founded on the same facts or evidence, were joined under section 40 of the Criminal Justice Act 1988.

At arraignment the Crown offered no evidence on the attempted-theft count and a formal verdict of not guilty was entered. The appellant was later tried before a jury on the two remaining common-assault counts. He was convicted of assaulting the shop manager and acquitted of assaulting a police officer.

He appealed against the conviction, contending that the original indictment became invalid once the indictable count had been disposed of before trial, so that the Crown Court lacked jurisdiction to try the summary-only counts.

1. Appeal dismissed. The indictment was properly preferred, signed, and valid in form and content. It continued to be the indictment in the case after the Crown offered no evidence on the attempted-theft count.

2. Section 40 of the Criminal Justice Act 1988 concerns the procedural stage at which a summary offence is joined with an indictable offence in an indictment. The validity of that joinder is determined when the indictment is drawn and preferred. A subsequent acquittal, whether following a jury verdict, a judicial direction, or a formal verdict after the Crown offers no evidence, does not strike the count from the indictment or retrospectively invalidate the joinder.

3. The court applied the reasoning in R v Plant [2008] EWCA Crim 960. The fact that the formal acquittal here occurred before the jury was put in charge did not create a material distinction. Section 40 contains no requirement that, at the outset of the trial, the jury must be put in charge of at least one count triable on indictment.

4. It was immaterial that the jury received an extract identifying only the live counts. The original valid indictment remained in existence, and there was no need to present the jury with a count that had already been formally disposed of. The conviction for common assault was therefore not unsafe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction, holding that the indictment remained valid after the formal acquittal on the indictable count.

• Central Criminal Court: convicted the appellant of common assault on the shop manager and acquitted him of the alleged assault on the police officer.

• Inner London Crown Court: at arraignment, entered a formal verdict of not guilty on the attempted-theft count after the Crown offered no evidence.

• Camberwell Magistrates' Court: committed the appellant, on his election, to the Crown Court for trial on attempted theft; the common-assault counts were joined under section 40 of the Criminal Justice Act 1988.