Kracher, R (On the Application Of) v Crown Prosecution Service

Common assault comprises two legally distinct forms: assault by beating and assault by putting another in fear of immediate unlawful violence. They cannot be charged in the alternative within a single count. A defendant must know the case to be met. Where a single charge is presented and contested as assault by beating, the court cannot convict on the different basis of a threat of immediate violence. A conviction on that basis is unjust and may be quashed. Challenges to magistrates’ court convictions should generally proceed by appeal by way of case stated, with judicial review reserved for appropriate cases, including some procedural failures.

The claimant was convicted by Leicester Magistrates’ Court of common assault arising from an altercation with a motorcyclist. The prosecution case was put on the basis that he had punched the complainant. The magistrates were not sure that a punch had been delivered, but convicted on the basis that words spoken by the claimant constituted a threat of immediate violence.

The claimant sought judicial review to quash the conviction and obtain a direction to acquit. The Crown Prosecution Service accepted that the case had been presented as assault by beating and that the conviction should not have followed. The court also considered delay and whether the claimant should have proceeded by case stated.

1. Disposition. Permission was granted and the judicial review was determined substantively. The conviction was quashed and the case was remitted to the magistrates with a direction to acquit.
2. Common assault may be committed either by actual violence, properly described as assault by beating, or by putting another in fear of immediate unlawful violence without actual violence. These forms amount in law to different offences. They cannot be charged in the alternative within one count.
3. The charge and the way in which the case was presented defined the case the defendant had to meet. The claimant contested the allegation on the basis that he had not struck the complainant. Convicting him on the basis of a threat would have required a further charge and separate verdicts. On the magistrates’ findings, separate charges would have resulted in acquittal on assault by beating and conviction on assault by threat.
4. Although the application was made within the three-month period, it was not made promptly. The more appropriate route was an appeal by way of case stated, which would have enabled the magistrates to state the relevant facts and their reasoning. Expiry of the 21-day period was not, by itself, a good reason to use judicial review; an application for a case stated out of time should have been considered. Nevertheless, the admitted injustice and the procedural aspect of the case justified quashing the conviction.
5. Costs were ordered out of Central Funds under section 16 of the Prosecution of Offences Act 1985.

• Leicester Magistrates’ Court: convicted the claimant of common assault on 24 January 2012.
• High Court (Administrative Court): granted permission, quashed the conviction and remitted the case to the magistrates with a direction to acquit. An appeal to the Crown Court had been adjourned pending this decision.