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Published online by Cambridge University Press: 16 January 2009
The Decision of the House of Lords in Clarence Wilson alters the law of included offences, but the extent of its impact is unclear. The decision is of unhappy importance not only as a disconcerting specimen of the functioning of our final court of appeal but also because of its possibly serious effect on the. theory of indictments. It has been subjected to devastating criticism by Professor Smith, and awkward questions upon it have been raised by Mr. Emmins. This article will seek both to underline the criticisms by a closer examination of the opinion and to suggest a more limited interpretation of it than has previously been considered.
1 [1984] A.C. 242.
2 (1984) Crim.L.R. 37.Google Scholar
3 Ibid., 152.
4 An attempt and an included offence may be left to the jury along with the main offence, the jury being instructed to convict of one only. Other alternative charges are left to the jury seriatim according to the verdict arrived at: see Archbold, 41st ed para. 4–39.
5 Hircock (1978) 67 Cr.App.R. 278 overlooks this rule. See Griew in [1979] Crim.L.R. 292.Google Scholar
6 [1984] Crim.L.R. 160.
7 [1983] 1 W.L.R. 356; [1983] 1 All E.R. 993, approved by the House of Lords in [1984] A.C. 242.
8 1 C.C.R. 194.
9 (1888) 22 Q.B.D. 23. In Wilson [1984] A.C. at 260E Lord Roskill misinterpreted Wills's judgment in Clarence, saying that “Wills, J. was clearly of the view that grievous bodily harm could be inflicted without an assault, for example, by creating panic.” In fact the passage in Wills J.'s judgment clearly requires an assault, and he approved Taylor. Moreover, though the other members of the majority in Clarence did not refer to Martin, Wills J. had delivered the leading judgment, and it is fair to assume that those who spoke after him accepted what he said as adequately disposing of that decision. But Wills J. was certainly in error in saying that Martin was guilty of an assault, if the traditional law were applied, and Lord Roskill rightly held that Martin committed no assault in law, whatever the judges thought in Clarence.Google Scholar
10 (1881) 8 Q.B.D. 54. In addition to Martin there were several cases in which, although the court did not advert to the fact in delivering judgment, there appears to have been a psychic assault without a battery (the victim having been injured in trying to escape). These cases are not strong authorities for saying that no assault was required; they show only that no physical assault, or battery, was required.
11 [1976] V.R. 452.
12 Indictment Rules, S.I. 1971/1253.
13 Notwithstanding the body of authority for this view, the successful argument for the Crown in Wilson contained the extraordinary statement that “the Crown cannot find any authority which justifies the necessary step test” ([1984] A.C. at 247G). The argument also remarked that “the charge of manslaughter shows the nonsense of the necessary step test in view of the various ways of committing manslaughter”; but counsel for the Crown did not suggest any circumstances in which a charge of manslaughter could involve an included offence.
14 Lord Roskill in Wilson expressed the opinion that the concluding words have become unnecessary since the creation of the Crown Court; but they have the effect of preventing the jury from convicting of a summary offence.
15 [1984] A.C. at 256–257.
16 Ibid.,259C-260.
17 Ibid., 261.
18 (1969) 53 Cr.App.R. 608.
19 Lord Roskill said: “In one group it has been held that a verdict of assault was a possible alternative verdict on a charge [under] section 20. In the other group grievous bodily harm was said to have been inflicted without any assault having taken place, unless of course the offence of assault were to be given a much wider significance than is usually attached to it.” It will be seen that his Lordship did not assert that any case decided that there could be an included verdict of assault under section 20 although an assault was not a necessary requirement of the section. The cases in Lord Roskill's first group assumed it was such a requirement. The cases in his second group were not concerned with included offences and did not discuss the question of assault under section 20, though in all except Martin there probably was an assault. All the authorities except Martin could have been reconciled with each other.
20 Austin (1973) 58 Cr.App.R. 163Google Scholar; Nicholls [1978] Crim. L.R. 247Google Scholar; McCready [1978] 1 W.L.R. 1376; [1978] 3 All E.R. 967; 67 Cr.App.R. 345.Google Scholar
21 See Hodgson [1973] Q.B. 565; J. C. Smith in [1978] Crim.L.R. 247 and [1983] Crim.L.K. 388; Archbold, 41st ed., p. 464Google Scholar, adopted by counsel for the defence in Wilson [1984] A.C. at 252E, who also put the point admirably by saying that allowing additional offences to be charged by adding averments to a count would result in the re-introduction of narrative pleading.Google Scholar
22 Yeadon (1861) Le. & C. 81; 169 E.R. 131.Google Scholar
23 See Springfield (1969) 53 Cr.App.R. at 612.Google Scholar
24 See Mowatt [1968] 1 Q. B. 421.Google Scholar
25 See Springfield, 53 Cr.App.R. at 612.
26 See Collison (1980) 71 Cr.App.R. 249.Google Scholar
27 See Austin, Nicholls and McCready, above n. 20.