Zenith Crime Current Awareness

Can a jury try an indictment containing a single summary only offence?

18 December 2015

Maxine Best

After an either way offence is removed from an indictment, so that the only matters left are summary only, what should the Crown Court do?

The Court of Appeal in R v (Leroy) Lewis [2013] EWCA Crim 2596 concluded that once a common assault charge has been properly sent to the Crown Court under s.40 of the Criminal Justice Act 1988, it should be tried before a Judge and jury notwithstanding the withdrawal or dismissal of the either-way offence that enabled it to be sent.

In April 2013, the Defendant was committed to the Crown Court on his own election for trial on one charge of attempted theft (a triable either way offence). Two charges of common assault were joined in the indictment pursuant to s.40(1)(a) CJA 1988 (it was accepted the offences were founded on the same facts). The Appellant was arraigned on an indictment which, it was accepted, was properly stamped and received at the Crown Court.

The Defendant pleaded not guilty to the attempted theft and the Crown offered no evidence on that count; a formal verdict of not guilty was directed and entered against count 1. This left counts 2 and 3 – two summary only charges of common assault.

Prior to the start of the trial judge asked whether the jury could be put in charge of an indictment which contained summary only charges. It was submitted by the defence that the indictment was no longer valid and the trial could not proceed. That submission was rejected by the trial judge and, after trial, the defendant was convicted on count 2 (and acquitted on count 3).

The defendant appealed against conviction on count 2 on the ground that the Crown Court did not have the jurisdiction to try the two assault charges once the not guilty verdict had been entered to the count of attempted theft because the indictment was invalid. The appeal was dismissed.

The Court’s reasoning:

  • The indictment was valid in form and content
  • 40 CJA 1988 is a procedural provision which is relevant to the stage at which the indictment is drawn up
  • The offences of common assault were properly contained within that indictment
  • It was on that valid indictment that the Appellant was tried and convicted on one of its remaining counts
  • It would be wasteful of resources and in conflict with the desirability of dealing with matters promptly if a summary offence in such an instance had to be withdrawn from the jury and retried before the magistrates

Therefore, if the conditions for inclusion are met at the time the indictment is drawn up, the Crown Court should proceed to try the summary offence irrespective of later procedural reasons that lead to the either way offence being removed from trial by jury.

Two further matters arise from this judgment:

  • This judgment has no effect on s.40(2) CJA 1988, the Crown Court is restricted in sentencing such an offender to the powers the Magistrates would have had.
  • It is the sensible procedure to present the jury with an extract from the indictment setting out the charges that remain live as opposed to presenting them with charges they do not have to consider [para 9].

Current Awareness

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