Can you attempt a summary only offence? R v Nelson – Case Comment


The first case on Bailii this year is an interesting one – Nelson [2013] EWCA Crim 30. It is to do with how a Crown Court deals with Common Assault, in particular, it looks at the question of when it can be an alternative for the jury to consider (the question of alternative verdicts – for example when a jury can find someone guilty of manslaughter when they are charged with murder – is a complicated one and we will do a separate post looking at this in more detail).


Mr Nelson was (and presumably still is) serving life imprisonment for an unspecified offence. On 28th December 2010 there was an ‘incident’. It was alleged that Mr Nelson had said to a Michael Hammond (a prison officer) that he would ‘smash [his] fucking face in’. This was due to the manner in which Mr Hammond was searching Mr Nelson’s cell.

The next day, Mr Nelson was alleged to have punched Mr Hammond (a Common Assault). The case ended up in the Crown Court due to the fact that just after this (alleged) punch, Mr Nelson is supposed to have scratched another officer’s cornea (an ABH). The Judge, however, directed the jury at the end of the Prosecution case to acquit Mr Nelson.

The problem that gave rise to the appeal was that there are two ways of committing Common Assault – firstly (usually called a Battery, or an Assault by Beating) when someone inflicts some level of force (such as the punch alleged here). The second is where the action of the individual is to cause someone to fear that physical force will be used against them.

Obviously, in many cases both will be present. For example, if I come towards you and punch you, you will apprehend the violence (as I swing my fist) and then by subject to force (as the fist connects). Here, the offence was charged as a Battery. Due to the way that the evidence came out, it seems that there was an issue as to whether the punch connected.

For this reason, the Prosecution applied to add the other form of Common Assault as a separate ‘count’ on the indictment (just before finishing the end of their case). The Judge decided not to allow this due to the way the case had developed.

By the end of the trial, the Judge seems to have changed his mind. He directed the jury that they could consider the Common Assault as an alternative to the Battery that was on the indictment. After deliberating, the jury found Mr Nelson not guilty of the Battery, but guilty of the Common Assault.


The Court held that Common Assault is not an alternative to Assault by Beating [paras 6-9]. So far so good – the Court is clearly right – the elements of the offence are different.

However, the Court did go on to consider an interesting question – can you be guilty of an Attempted Common Assault? On the face of it, the answer is ‘no’ as the Criminal Attempts Act 1981 applies only to ‘indictable’ offences. The Court decided, however, that you can [para 11], although in the circumstances of the case they decided that it was not fair to substitute a conviction for Attempted Battery.


That you can have an attempted common assault is a big development in the law. But was the court right?

The court was made up of three good judges, who are all more intelligent than me. However, I’d suggest that they got this one wrong. The caveat here is that we don’t have the audio or transcripts of the proceedings, or even the skeleton arguments that were provided to the Court, so we do not know what the arguments were.

The Criminal Attempt Act 1981 applies to any offence which “if it were to be completed, would be triable in England and Wales as an indictable offence”. Is common assault ‘indictable’? The Court concluded that it is, because it can appear on an indictment by virtue of s40 Criminal Justice Act 1988.

There is no definition of ‘indictable’ in the 1981 or 1988 Act. However, when you look at Sch 1 Interpretation Act 1978, this states :

In relation to England and Wales—

(a) “indictable offence” means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way;
(b) “summary offence” means an offence which, if committed by an adult, is triable only summarily;
(c) “offence triable either way” means an offence, other than an offence triable on indictment only by virtue of Part V of the Criminal Justice Act 1988] ,which, if committed by an adult, is triable either on indictment or summarily;

 and the terms “indictable”, “summary” and “triable either way”, in their application to offences, are to be construed accordingly.”

In the above definitions references to the way or ways in which an offence is triable are to be construed without regard to the effect, if any, of section 22 of the Magistrates’ Courts Act 1980 on the mode of trial in a particular case.”

Full details of the list of either way offences is in the Magistrates’ Court Act 1980 (s17 and Sch 1).

It is clear that Common Assault is specifically excluded from being an ‘indictable offence’ under the Interpretation Act,  notwithstanding the fact that it can appear on an indictment. Does the emphasised words “triable in England and Wales as an indictable offence” make a difference? The Criminal Attempts Act was passed before the 1988 Act introduced these ‘hybrid’ criminal offences. That, and the natural meaning of the words, would seem to suggest that it only applies to an ‘indictable offence’ as defined in the Interpretation Act 1978.

In the absence of clear reasons as to why the Interpretation Act does not apply, we would suggest that this should not be used as a precedent.

Also, no authority is cited. There is nothing on point, but that which does exist does not support the Court’s ruling. In R v Bristol Magistrates’ Court [1999] 1 Cr App R 144, the Court rejected an argument that Attempting to commit Criminal Damage was not an offence known to law. But this is because Criminal Damage, even when it is triable only summarily, remains an either way offence. It was noted that “It can hardly be thought in any event that the 1988 Act was intended to alter the true effect of the 1981 Act.”

Further Comment

1. Apologies if this has been a bit ‘legalistic’, we will come and fill in the gaps with some of the legal terminology with some further pieces.

2. The Prosecution have a duty to prosecute cases. Equally, in the current financial climate, they should be careful about spending their money. Is prosecuting in a case like this, where the defendant is under a sentence of life imprisonment, a good use of money? We don’t know the total costs, but it would run into 5 figures.

3. What did the Court of Appeal make of the Interpretation Act or any caselaw? We don’t know as they don’t address it. What arguments were made about it? Again, we don’t know. It would be very simple to have the skeleton arguments published on the Court of Appeal website. Not only would this measure help the public understand what the cases are about, it may also help us lawyers!

7 thoughts on “Can you attempt a summary only offence? R v Nelson – Case Comment

  1. Dan Bunting Post author

    @lincolnslawyer @ukcrimeblog I think the court was right. “Indictable” means “capable of being put on the indictment.” Counterintuitive

  2. Dan Bunting Post author

    Jon, I’m replying here as can’t do it in 40 characters :)

    To my mind, the Interpretation Act is clear and ‘indictable’ means any offence that can be on an indictment, save for those that can only be by virtue of s40. The only way around that is if the ‘as an‘ in “triable in England and Wales as an indictable offence” changes the general meaning of ‘indictable’. I can’t see any argument for that. In any event, what about the quote from R v Bristol Magistrates’ Court [1999] 1 Cr App R 144 cited above?

  3. Dan Bunting Post author

    A further (minor) point is which Court(s) have jurisdiction over an Attempted Battery? s4(1) Criminal Attempts Act makes provision for jurisdiction for three categories of attempted offences (1) Murder, (2) Indictable Only and (3) Either Way Offences. There is no provision for any penalties for any attempt to commit a summary only offence – the implication being that that is because it is not a crime.

    Also – the full quote from R v Bristol Magistrates’ Court [1999] 1 Cr App R 144 :”In the result, I conclude that the word “summary” in the opening line of section 40 of the 1988 Act and the words “triable in England and Wales as” in section 1(4) of the 1981 Act are indeed mere surplusage. It can hardly be thought in any event that the 1988 Act was intended to alter the true effect of the 1981 Act.” If those words are ‘mere surplusage’ then that leaves s1(4) as reading “This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence,” which is clear.

    That case is not binding, per se, but it would be interesting to know what the Court of Appeal said about it.

  4. John Allman

    So, if I take a swing at a beefeater, and miss, and he wasn’t frightened, because he didn’t even notice I’d tried to punch him, I could be tried summarily for attempted common assault, in a magistrates court? On the grounds that, although I wasn’t *actually* being indicted for anything, I could *theoretically* have been indicted for the common assault I had merely attempted unsuccessfully, if only (a) I hadn’t missed the beefeater, and also (b) provided I had just happened (say) also to stick a handful of the crown jewels in my pocket just before trying to punch the beefeater? Because then I could have been indicted for stealing the crown jewels, scaring the beefeater, and trying to hurt the beefeater, all on one indictment? Is that the scenario that Dan is extrapolating,. from the unique facts of Nelson? I can see why he finds that prospect worrying.

    If only these screws would learn some manners! They ought to search the homes of foul-mouthed (but excessively house-proud) lifers *nicely*, not making a mess and getting people’s private stuff all over the place so. Then nothing horrid like this would happen to them.

  5. Dan Bunting Post author

    The concern I have is that this applies to cases that are tried in the Magistrates’ Court as well. It means that an attempt to commit any offence that is in s40 Criminal Justice Act 1988 can now be charged. It may be that the CPS treat this as a new toy and go overboard charging people.

    We will have to see if there is any impact in the long term. It may be not, but it doesn’t change my view that the Court got it wrong!

  6. Pingback: Is it illegal to throw foodstuffs at a politician? | UK Criminal Law Blog

  7. Adrian Armstrong

    It may be because common assault can (I think) appear on an indictment ON IT’S OWN.

    Admittedly, another charge on the indictment would have be dropped first but just assault can go to the jury whereas if only true summary-only offences were left the trial might have to end.

    Assault, therefore, is unique, I believe.


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