Akhtar v R

A petrol bomb is an offensive weapon per se for the purposes of section 1 of the Prevention of Crime Act 1953. A jury need not determine that classification.

The bar on proceeding after conviction of an alternative offence applies to true mutually exclusive alternatives, such as a greater offence and its lesser included alternative. It does not apply merely because distinct offences were presented as forensic alternatives. Where their legal ingredients, temporal operation and mischief differ, a conviction on one count does not bar retrial of the other count in the same indictment.

During the 2011 public disorder, the appellant was arrested near a police station after police found petrol bombs nearby. He was convicted of possessing an offensive weapon contrary to section 1(1) of the Prevention of Crime Act 1953. The jury failed to agree on a separate count of possessing an article with intent to destroy or damage property contrary to section 3 of the Criminal Damage Act 1971.

At a retrial, the appellant was convicted on the latter count. He appealed both convictions. He contended that a petrol bomb had not been proved to be an offensive weapon and that the retrial was an abuse of process because the counts had been presented as alternatives.

1. Both convictions were upheld. The court also granted permission out of time to appeal the three-year concurrent sentence for possession of an offensive weapon, allowed that sentence appeal, and substituted no separate penalty.

2. A petrol bomb is an offensive weapon per se within section 1(4) of the Prevention of Crime Act 1953. Applying the analysis in R v Simpson 78 Cr App R 115, it is specifically made to be portable, lit and thrown so as to cause an explosion, injury and damage. It has no apparent innocent use. The judge was therefore entitled to proceed without leaving its classification to the jury. The summing up’s focus on damage rather than injury was flawed, but did not render the conviction unsafe.

3. The retrial was not barred by autrefois, the rule in Elrington [1861] 1 B & S 688, or the principle concerning true alternative charges explained in R v Bayode [2013] EWCA Crim 356. The two offences had different legal ingredients and addressed different mischiefs. Possession of an offensive weapon was complete when the petrol and wicks were placed in the bottles. The intention to damage property could have formed later.

4. The counts were not mutually exclusive alternatives, nor was one a lesser included offence of the other. Their presentation as forensic alternatives did not convert them into true alternatives. The Crown could therefore pursue the unresolved count after the first jury’s conviction on the other count. Judge Carr had power to discourage that course on public-interest grounds, but no legal impediment or abuse of process arose.

5. Although both convictions could stand, the court considered that no separate penalty on the offensive-weapon count better reflected the overall criminality.

• Court of Appeal (Criminal Division): Appeals against conviction dismissed in [2015] EWCA Crim 176. Permission was granted out of time to appeal the concurrent sentence for possession of an offensive weapon; that sentence was varied to no separate penalty.
• Crown Court at Wood Green: The appellant was convicted of possessing an offensive weapon before Judge Ader. The jury did not agree on the separate criminal-damage count. Following Judge Carr’s refusal to stay that count, a retrial before Judge Dean resulted in conviction.