Nelson, R. v

Under section 6(3) of the Criminal Law Act 1967, an alternative verdict is available only where the allegations of the offence charged include every ingredient of the alternative offence. Common assault requires that the alleged victim apprehended an imminent blow. Assault by beating does not. A charge of assault by beating therefore cannot support a conviction for common assault as an alternative verdict.

Section 6(3A) removes a jurisdictional obstacle to some common-assault alternatives, but it does not remove the ingredients requirement. A conviction for an alternative offence may be substituted on appeal only where it would be just in all the circumstances.

The appellant, a serving prisoner, was tried at Leeds Crown Court for assaulting a prison officer by beating and for assault occasioning actual bodily harm to another officer. The judge directed an acquittal on the latter count.

The prosecution alleged that the appellant punched the first officer. The defence maintained that the punch missed and had initially also raised the lawfulness of the appellant’s conduct. The jury acquitted the appellant of assault by beating but convicted him of common assault after the judge left that offence as an alternative verdict, despite having refused an amendment adding it as an alternative count.

On appeal, the Crown invited the court to substitute a conviction for attempted battery. The central issues were whether common assault was a permissible alternative verdict and, if not, whether substitution would be just.

1. Appeal allowed. The conviction for common assault was quashed. The judge had no power to leave it as an alternative verdict to assault by beating.

2. Section 6(3) of the Criminal Law Act 1967 requires the allegations in the charged offence to amount to, or include, the alternative offence. That requires all ingredients of the alternative offence to be included in the charged offence. Common assault requires conduct causing the alleged victim to apprehend being struck. Assault by beating requires an infliction of violence but does not require such apprehension. A blow from behind illustrates the distinction. Accordingly, assault by beating does not include common assault.

3. Section 6(3A) removed the jurisdictional difficulty addressed in R v Mearns [1991] 1 QB 82, where common assault was sought as an alternative to assault occasioning actual bodily harm. It permits common assault to be an alternative where section 40 applies, even without a count on the indictment. It does not alter the separate ingredients condition in section 6(3).

4. Attempted battery was legally capable of substitution. Although battery is normally summary, it could have been tried on indictment under section 40(1) of the Criminal Justice Act 1988 as part of a series of similar offences that included the indictable actual-bodily-harm charge.

5. The court nevertheless declined to substitute it under section 3 of the Criminal Appeal Act 1968. The defence had made tactical decisions, including not pursuing the lawfulness issue and not calling the appellant, in reliance on the judge’s earlier refusal to add common assault. It would not be just to substitute a conviction in those circumstances.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction for common assault. It declined to substitute a conviction for attempted battery.

• Leeds Crown Court: The jury acquitted the appellant of assault by beating and convicted him of common assault as an alternative verdict. The judge had directed an acquittal on the count alleging assault occasioning actual bodily harm.