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

A charge of common assault will ordinarily be understood as including an allegation of actual unlawful force, namely battery. The description assault by beating may therefore identify the same section 39 offence. The essential requirement is that the defendant knows the case to be met. A conviction will be procedurally unfair only where the basis of conviction differs materially from the prosecution case and the defendant suffers, or may suffer, relevant prejudice. Where the charge and surrounding circumstances make the allegation sufficiently clear, a defendant must identify a material change to the preparation or presentation of the defence.

The claimant sought judicial review of his conviction by the Black Country Magistrates’ Court for assaulting Jamie Taylor by beating him. He contended that he had been charged only with common assault and had been convicted of a different offence without adequate notice, contrary to common-law fairness and article 6 of the European Convention on Human Rights.

The charge was recorded as having been amended in the claimant’s presence to refer to assault by beating. The claimant disputed that amendment. The court considered both possibilities: that the amendment had been made, and that the charge had remained expressed simply as common assault. The issue was whether the conviction was unfair or unlawful in either event.

1. The renewed application was refused. The challenge was unarguable, and the claimant had not shown that the conviction was unsafe or procedurally unfair.
2. The court accepted that assault, strictly understood, involves causing apprehension of immediate unlawful violence, whereas battery involves the application of unlawful force. However, the term common assault is often used as an abbreviation for assault and battery and may include battery. The description assault by beating therefore creates no difficulty in law or practice when used to describe a section 39 offence. This approach was consistent with Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; (1968) 52 Cr App R 700 and Haystead v Chief Constable of Derbyshire [2000] 2 Cr App R 339.
3. The governing fairness principle is that a defendant must know the case he or she is facing. R (Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin) illustrated the problem where the prosecution case was firmly and exclusively based on punching, but conviction followed on the wholly different basis of threatened violence. That was not this case.
4. The court was satisfied that the charge had been amended in the claimant’s presence to state assault by beating. Even if it had not been amended, the general charge of common assault would ordinarily have conveyed an allegation of actual unlawful force. There was no evidence that the claimant’s defence would have materially changed, or that he would have attended or been represented, had the precise description been made clearer.

• Black Country Magistrates’ Court: convicted the claimant in his absence and later sentenced him to a community-based order.
• High Court (Administrative Court): Carr J refused a stay on 29 March 2019. Pepperall J refused permission on the papers on 25 June 2019. The Divisional Court refused the renewed application for permission.