REGINA v Fennell

Factual and Procedural Background

On 8th February 2000, at Inner London Crown Court, following a trial before Judge Rountree, the Appellant was convicted of assault occasioning actual bodily harm as an alternative to a racially aggravated assault charge and convicted of criminal damage as an alternative to a racially aggravated criminal damage charge. The Appellant was acquitted on a count alleging racially aggravated fear or provocation of violence. Sentences of 8 months' imprisonment for the assault and 1 month for the criminal damage offence were imposed concurrently, totaling 8 months.

The Appellant appealed the conviction with leave granted by a Single Judge, who referred the application for leave to appeal against sentence to the Full Court. A co-accused, Richards, was acquitted on all counts.

The incident occurred in a shop owned by Mr and Mrs Rauf, where a struggle between the Appellant and Mr Rauf resulted in injuries to both and damage to shop goods. The Appellant had gone to the shop following a prior incident involving Mr Rauf and the Appellant’s girlfriend. The trial focused on two main issues: whether the Appellant acted in self-defence concerning the assault and whether the criminal damage was accidental, and whether the Appellant used racial language underpinning the racially aggravated charges.

Mr Rauf testified that the Appellant pulled his arm causing him to trip and fall, after which the Appellant pushed and punched him, making a racial remark. Mrs Rauf corroborated hearing racial comments made by the Appellant during the incident. Other witnesses did not report any racial language. The police were informed of the racial element only later that day by Mrs Rauf.

The Appellant testified denying any racial intent or intention to cause harm, stating he sought an explanation and apology from Mr Rauf regarding the prior incident involving his girlfriend. He described a struggle during which he believed Mr Rauf might have had a knife and struck him in self-defence. Evidence was also given by the Appellant’s girlfriend, mother, and the co-accused Richards.

At trial, the judge considered and allowed alternative verdicts to be left to the jury for non-racially aggravated offences. The defence did not object before the jury returned the verdicts.

Legal Issues Presented

1. Whether it was legally permissible for the trial judge to leave the alternative, non-racially aggravated criminal damage offence to the jury without amending the indictment to add an additional count.
2. Whether the late stage at which the judge decided to leave alternative counts to the jury unfairly prejudiced the defence.

Arguments of the Parties

Appellant's Arguments

• The trial judge erred in law by leaving the non-racially aggravated criminal damage offence to the jury without amending the indictment to add a separate count.
• The late decision to leave the alternative counts caused unfair prejudice to the defence.
• Reliance on authorities such as R v Burt and R v Bristol Magistrates' Court ex parte E to support the submission that simple criminal damage under a certain value is triable only summarily and thus should not have been left to the jury without proper indictment procedure.

Appellee's Arguments

• Simple criminal damage is triable either way under section 17 and Schedule 1 of the Magistrates' Courts Act 1980, and section 40 of the Criminal Justice Act 1988 provides a procedural mechanism for including summary offences as alternatives on an indictment without changing the character of the offence.
• The Interpretation Act 1978 definitions clarify that the mode of trial provisions in section 22 of the Magistrates' Courts Act 1980 do not affect the classification of offences as indictable, summary, or triable either way.
• The decision in R v Burt was reached per incuriam as it did not consider relevant statutory provisions, including the Interpretation Act and section 17 of the Magistrates' Courts Act.
• The late decision to leave alternative counts did not cause unfair prejudice, as the defence was aware of the issues and evidence concerning both racial aggravation and self-defence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Burt [1996]	Whether simple criminal damage below a monetary threshold is triable only summarily and thus requires a separate count if charged on indictment.	The Court respectfully disagreed with Burt, holding it was decided per incuriam and that simple criminal damage remains triable either way.
R v Bristol Magistrates' Court ex parte E [1999] 1 Cr App R 144	Interpretation of the phrase "as if triable only summarily" in relation to criminal damage offences and mode of trial.	The Court found the decision consistent with its conclusion that criminal damage is triable either way and not summary only.
R v Mearns [1991] Cr App R(S) 312	Jurisdiction of Crown Court over summary offences included as alternatives on indictment.	Referenced to explain the necessity of specifically adding alternative counts for summary offences when required.
R v Fairbanks [1983] Cr App R 251	Permissibility of leaving lesser alternative offences to the jury to serve the interests of justice.	Supported the Court's view that leaving alternative offences to the jury late in the trial did not cause unfair prejudice.

Court's Reasoning and Analysis

The Court examined the statutory framework governing the mode of trial for criminal damage offences, particularly sections 17, 19, 22 of the Magistrates' Courts Act 1980, section 40 of the Criminal Justice Act 1988, and the Interpretation Act 1978. It noted that section 17 and Schedule 1 clearly classify simple criminal damage as triable either way. Section 22 directs magistrates on mode of trial considerations but does not reclassify the offence as summary only.

The Court critically analyzed the authority of R v Burt, which held that simple criminal damage under a certain value is triable summarily only, concluding that Burt was decided without reference to relevant statutory provisions and was therefore per incuriam. The Court emphasized that Parliament did not expressly change the classification of criminal damage to summary only and that such a fundamental change would require clear legislative language.

The Court also relied on the Interpretation Act's provision that the definitions of offence types are to be construed without regard to section 22's effect on mode of trial, reinforcing that criminal damage remains triable either way. It found that the procedural mechanism in section 40 of the Criminal Justice Act 1988 allows summary offences to be included as alternatives on indictments but does not alter the offence's classification.

Regarding the timing of leaving alternative counts to the jury, the Court referenced established case law supporting the practice to ensure justice is served by allowing conviction on lesser offences when the evidence does not satisfy the jury on greater charges. It found no unfair prejudice to the defence in the late decision to leave alternatives to the jury, given the defence's awareness of the issues and evidence presented.

Accordingly, the Court concluded it was legally permissible for the trial judge to leave the simple criminal damage offence to the jury without amending the indictment and that the jury's verdicts were safe.

Holding and Implications

The Court DISMISSED the appeal against conviction and refused leave to appeal against sentence.

The holding confirms that simple criminal damage remains an offence triable either way and that trial judges may leave alternative non-racially aggravated counts to the jury without needing to amend the indictment, even if done late in the trial, provided no unfair prejudice arises. This decision clarifies the interpretation of statutory provisions governing mode of trial for criminal damage offences and rejects the precedent set by R v Burt as per incuriam. No new precedent beyond the immediate case was established, and the sentence imposed was upheld as appropriate.