The idea that the offence of Attempted Battery is an offence known to the law of England and Wales would cause most lawyers to laugh (sad I know). But the reason for this is straightforward. Section 1(1) of the Criminal Attempts Act 1981 provides as follows:
"If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence." (Emphasis added)
Section 1(4) sets out, in clear terms, those offences to which the section applies:
"This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than-
(a) conspiracy (at common law or under section 1 of the Criminal Law Act 1977);
(b) aiding, abetting, counselling, procuring or suborning the commission of an offence;
(c) offences under section 4(1) (assisting offenders) or 5(1) (accepting or agreeing to accept consideration for not disclosing information about a relevant offence) of the Criminal Law Act 1967." (Emphasis added)
Archbold and Blackstone's each make similar points about the ambit of section 1. Blackstone's states categorically "Where an offence is triable only summarily, it cannot be the object of a criminal attempt under s.1". This is hardly surprising. Section 4(1) of the 1981 Act provides as follows:
"A person guilty by virtue of section 1 above of attempting to commit an offence shall:
(a) if the offence attempted is murder or any other offence the sentence for which is fixed by law, be liable on conviction on indictment to imprisonment for life; and
(b) if the offence attempted is indictable but does not fall within paragraph (a) above, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence; and
(c) if the offence attempted is triable either way, be liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence."
Note, that whilst there is reference to an indictable offence and an offence which is triable either way, there is no reference to a summary offence. Again, hardly surprising.
That Battery is a summary offence is illustrated by s.39 of the Criminal Justice Act 1988:
"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 term not exceeding six months, or to both."
So, why go in to all this detail simply to state the obvious? The reason follows the extraordinary decision of the Court of Appeal in the recent case of R v Gary Nelson  EWCA Crim 30 where the Court concluded that the offence of Attempted Battery is one which is known to the law.
The facts of the case are largely unimportant albeit that the Crown Court falls into error by leaving to the jury consideration of the offence of Common Assault as an alternative to the offence of Battery which it was not entitled to do for the reasons given by the Court of Appeal. On that basis, the appeal should have been allowed (indeed it ultimately was) and no more should have been said about it. Unfortunately, the Court of Appeal decided to undertake an exploratory exercise as to whether or not a person, in the position of the Appellant, could be guilty of the offence of Attempted Battery. Had the exploratory exercise amounted to more than three short paragraphs, the Court may have come to a different conclusion. As it was, this is what the Court said at paragraphs 10-12 of its Judgment:
"But that is not quite the end of the story. When the Full Court granted the appellant leave to appeal, it raised the question whether the appellant would have had any defence to a charge of attempted battery. It had in mind, of course, the Court of Appeal's power under section 3 of the Criminal Appeal Act 1968 to substitute a verdict of guilty for a different offence from the one on which an appellant was convicted if the jury must have been satisfied of those facts which would have proved him guilty of the different offence. The prosecution have decided to run with that ball. They now ask for the court to take that course, and instead of allowing the appeal, to substitute for the appellant's conviction for the offence of common assault a conviction for an offence of attempted battery.
The difficulty here is that section 1(4) of the Criminal Attempts Act 1981 provides that a defendant can only be guilty of attempting to commit an offence where the offence, if it had been completed, "would be triable in England and Wales as an indictable offence", subject to certain exceptions, none of which are relevant here. The question therefore is whether the offence of battery would be triable in England and Wales as an indictable offence. The answer, at first blush, is "no": section 39 of the 1988 Act made the offence of battery a summary offence. But although it is a summary offence, there is at least one situation in which it may be tried on indictment. Section 40(1) of the 1988 Act provides that an offence of "common assault", which the Court of Appeal in Lynsey  2 Cr App R 667 said should be construed as including an offence of battery, "may be included in an indictment if the charge … (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged …". There then follows a proviso which is not material to the present case.
In our opinion, an offence of battery in relation to Mr Hammond would have been part of a series of offences of a similar character as the indictable offence of assault on Mr Goldthorpe occasioning him actually bodily harm with which the appellant was charged. It follows that the offence of battery was one which was triable in England and Wales as an indictable offence, and it is open to the court to substitute a conviction for the offence of attempted battery for the conviction for the offence of common assault."
Ultimately, the Court of Appeal concluded that it would not be just, on the facts of this case, to substitute an offence of Attempted Battery and so they did not. However, does their reasoning as regards the existence of such an offence stand up to scrutiny? I would suggest that it does not.
The Court acknowledges the wording of section 1(4) of the 1981 Act and section 39 of the 1988 Act. However, it seizes upon the phraseology contained within section 40(1) of the 1988 Act, the relevant part of which provides as follows:
"A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge:
(a) is founded on the same facts or evidence as a count charging an indictable offence; or
(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged" (Emphasis Added)
The Court of Appeal determined that, once the Battery featured on the indictment, it became an offence which was "triable as an indictable offence" and therefore subject to the provisions of section 1 of the 1981 Act.
It seems to me that the Court has failed to distinguish between an offence which is "triable as an indictable offence" (section 1(1) of the 1981 Act) and an offence which "may be included in an indictment" (section 40(1) of the 1988 Act). Section 40(1) of the 1988 Act makes clear that it applies to a count charging a person with a summary offence, of which the offence of Attempted Battery is not as it does not exist as a summary offence in its own right. Thus, and following the Court of Appeal's reasoning, you could never have a state of affairs where a Defendant was charged with the single offence of Attempted Battery before a magistrates' court. The only way the offence could ever manifest itself is in the circumstance where the Defendant faced trial on indictment, a Battery was included as a count (providing, of course, that it satisfied the test in s.40(1) of the 1988 Act), then, once it was in the Crown Court, an offence of Attempted Battery was substituted or left as an alternative.
That would be an extraordinary state of affairs indeed. It could not possibly have been the intention of Parliament that the offence of Attempted Battery can only arise in the situation described above. Nor, I would suggest, is that the outcome of a literal reading of the existing law.
There is one argument the Court of Appeal could have mustered to support its conclusion but it did not do so. Section 40(2) of the 1988 Act provides as follows:
"Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him."
It could be argued that this section bolsters the Court of Appeal's reasoning that the presence of the summary only offence on the indictment transformed it into an indictable offence. But a careful analysis of this section would show that to be incorrect. First, the phrase "as if it were an indictable offence" makes it very clear that the presence of a summary only offence on an indictment does not turn it into an indictable offence, it simply allows it to be tried in the same manner as if it were. Does this mean you can therefore turn it into an attempt? I suggest not. The section makes it clear that when dealing with the offender (i.e. if it came to sentencing him or her) the Crown Court could only do so in a manner in which a magistrates' court could have done so. A magistrates' court would have had no power to deal with an offender for the offence of Attempted Battery as, even if one accepts the reasoning of the Court of Appeal, the offence could only manifest itself as part of an indictment!
What is particularly frustrating about this 'development' is that it was needless. The Court of Appeal allowed the appeal and should have just left it at that. Now we are left in a peculiar state of affairs and I rather suspect that the matter will need to be argued again at the first available opportunity.
I am particularly interested in views on this topic so I encourage people to share their thoughts!