Dixon v Crown Prosecution Service [2018] EWHC 3154 (Admin); [2018] 4 WLR 160
This underlines the importance of the point made by Donaldson LJ in Bentley v Brudzinski (1982) 75 Cr App R 217, 226, that prosecutors should consider making an alternative charge of common assault when they have reason to think that there may be an issue as to whether a police constable was acting in the execution of his duty but that the defendant may nevertheless be guilty of a common assault by reason of having used unjustified force. Unlike on a trial on indictment, magistrates at a summary trial have no power unless provided specifically by statute (e.g. section 24 of the Road Traffic Offenders Act 1988) to find an accused not guilty as charged but guilty of a lesser offence, even if (as in the case of common assault and assaulting a constable in the execution of his duty) the lesser offence is wholly encompassed within the offence charged. Unless, therefore, there is an alternative charge of common assault, a finding that a constable was not acting in the execution of his duty when assaulted by the defendant must lead to the defendant’s complete acquittal if the only offence charged is an offence under section 89(1) of the Police Act 1996.
Comment: Given CPS policy in relation to charging now that the Assaults on Emergency Workers (Offences) Act 2018 is in force, this is perhaps now all academic.