Haystead v Chief Constable of Derbyshire, Court of Appeal - Queen's Bench Division, May 12, 2000, [2000] 2 Cr App R 339,[2000] EWHC QB 181,[2000] 3 All ER 890

Resolution Date:May 12, 2000
Issuing Organization:Queen's Bench Division
Actores:Haystead v Chief Constable of Derbyshire
 
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SMITH BERNAL

CO 452/00

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2

Friday, 12th May 2000

B e f o r e:

LORD JUSTICE LAWS

-and-

MR JUSTICE SILBER

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JOHN ANDREW HAYSTEAD

-v-

CHIEF CONSTABLE OF DERBYSHIRE

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(Computer-aided Transcript of the Stenograph Notes of

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MR M MAGEE (instructed by Stevens Solicitors, Suffolk CB9 8AD) appeared on behalf of the Applicant.

MR K.S. KHALIL (instructed by CPS, Cambridgeshire Branch, Huntingdon, Cambridgeshire PE18 6XY) appeared on behalf of the Respondent.

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J U D G M E N TFriday, 12th May 2000

  1. LORD JUSTICE LAWS: This is an appeal by way of Case Stated against the appellant's conviction on 8th September 1999 by the Chesterfield Justices of an offence of assault upon a child by beating, contrary to section 39 of the Criminal Justice Act 1988.

  2. The draft case as I understand it was prepared late, owing to the absence from the office of the responsible Justices' clerk. The appellant applied for an extension of time within which to file the case, to which the respondent prosecutor consented. A consent order (I am told by the Crown Office) was submitted on 16th February 2000 but apparently has not been sealed. I merely mention that in order to indicate that if there is any procedural defect in relation to the consent order, I would make the consent order as sought.

  3. Section 39 of the Criminal Justice Act 1988 merely provides thus:

    ``Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the Standard Scale, to imprisonment for a terms not exceeding six months or to both.''

  4. Although the charge referred to section 39, in truth, common assault by beating remains a common law offence. In fact the appellant faced three charges of assault by beating. In the first the alleged victim was Angela Wright, a young woman with whom he had been involved in a sexual relationship. In the second, the victim was her 12 month old son, Matthew, as I understand it by a different father; and it is the appellant's conviction on that second charge that forms the subject of this appeal. In the third, the victim was a neighbour, Sharon Maycock. All the offences were said to have happened on 26th April 1999.

  5. The Magistrates set out their finding in paragraph 2 of the Case, which reads as follows:

    ``The appellant had entered a plea of guilty to offences (i) and (iii) and not guilty to offence (ii). The matter was heard by us on the 8th September as a trial and also as a `Newton Hearing' in relation to offences (i) and (iii) as the appellant had disputed the facts. Having considered the evidence, we found the following facts:-

    (a) Angela Wright lived at 3 St John's Mount, Newbold, Chesterfield with her child Matthew right, and had been involved in a relationship with the appellant. By April 1999 the relationship was coming to an end.

    (b) On the 24th April there had been an incident at the home of Angela Wright after she had confirmed that the relationship was over. During the incident the appellant had said, `if I cannot have you, that's it, I'll gas you.' He closed the curtains and door and switched on the gas fire. The incident was brought to an end with the appellant saying that he loved Miss Wright and only wanted to frighten her.

    (c) Between the 24th and 26th April the appellant made telephone calls to Miss Wright's home and at 10 a.m. on the 26th April he visited the home once again. Miss Wright was present with her child who was approximately 12 months of age at that time.

    (d) Miss Wright was in the living room when the appellant knocked on the window and said that he had cancer and asked her to open the window which she did. The appellant was allowed into the house and he accused Miss Wright of taking the child with her when she was stealing from shops.

    (e) Whilst Mrs right was holding her baby the appellant punched her twice in the face and as a direct result of the punches the child fell from her arms hitting his head on the floor. The child was visible to the appellant and he would have foreseen the risk of the child being injured given the degree of violence to Miss Wright.

    (f) The child was on the floor crying and Miss Wright was also on the floor trying to console him. The appellant punched Miss Wright again. The incident came to an end and the appellant left the house.''

  6. The remainder of paragraph 2 deals with the epilogue to this unpleasant incident that involved the neighbour Miss Maycock, the victim of the third offence. It is not necessary to read the subparagraphs which deal with that.

  7. The appellant made a submission of no case to answer which the magistrates rejected. He declined to give evidence and was convicted of the second charge against the child having, as I have made clear, pleaded guilty to the other two charges.

  8. The basis of the submission of no case was essentially the same as the basis of the Appellant's appeal to this court. The Magistrates summarised it in this way in paragraph 3 of the case:

    ``3. He submitted that to be guilty of battery it was necessary to establish that he had used force directly to the person of the child and that the evidence indicated that no force was applied directly to the child...''

  9. Paragraph 4 of the case records the submission of the respondent prosecutor.

    ``The respondent conceded that there had been no direct violence to the child and that the appellant had not intended to assault the child. However it was submitted that the appellant had been reckless and that he had applied violence to the mother which had itself caused the child to fall. As such there had been direct violence to the child.''

  10. Mr Head for the appellant submits that there is a mismatch between the opening words of that paragraph ``reporting respondent's concession'' and the last sentence. However that may be, as I have said, the magistrates convicted the appellant. The Case Stated shows that upon the way to doing so, they considered two questions: (i) was it shown that the Appellant was reckless in relation to the injury to the child? It is common...

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