Criminal

No evidence offered on count alleging common assault - not guilty verdict entered - whether autrefois acquit available on count based on same facts alleging assault occasioning actual bodily harmR v G(F): CA (Lord Justice Rose, Mr Justice Leveson and Mr Justice Mitting): 30 April 2001The defendant was charged with, among other things, common assault.

The prosecution was permitted to amend the indictment by adding a further count (count 4) alleging assault occasioning actual bodily harm, based on the same facts as count 1 which alleged common assault, because it appeared that injuries had been caused to the victim.

No evidence was offered on count 1 and, pursuant to section 17 of the Criminal Justice Act 1967, a verdict of not guilty was entered.

The case was re-listed and the defendant submitted that he was entitled to rely on autrefois acquit and could not be convicted on count 4.

The judge ruled against that submission, holding that R v Brookes [1995] Crim LR 630 determined the matter adversely to the defendant.

The defendant appealed against that ruling.Jonathan Green (instructed by Traymans) for the defendant.

Stephen Winberg (instructed by the Crown Prosecution Service, Highbury) for the Crown.Held, allowing the appeal, that R v Brookes had been decided per incuriam because it seemed that section 27 of the Magistrates' Courts Act 1980, which was similar in effect to section 17 of the 1967 Act, had not been present to the mind of the court on that occasion and, if it had been, it was highly unlikely that the decision would have been the same; and that, accordingly, where a verdict of not guilty had been recorded pursuant to section 17, the prosecution could notthen proceed against the defendant on a charge alleging a more serious offence based on the same facts because the defendant was entitled to rely on the defence of autrefois acquit.