Criminal Justice Act 1988

40 Power to join in indictment count for common assault etc. E+W

(1) 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,

but only if (in either case) the facts or evidence relating to the offence were disclosed [F1 to a magistrates’ court inquiring into the offence as examining justices][F2 or are disclosed by material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998 (procedure where person sent for trial under section 51), has been served on the person charged].

(2) 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.

(3) The offences to which this section applies are—

(a) common assault;

[F3 (aa) an offence under section 90(1) of the Criminal Justice Act 1991 (assaulting a prisoner custody officer);

(ab) an offence under section 13(1) of the Criminal Justice and Public Order Act 1994 (assaulting a secure training centre custody officer)]

(b) an offence under section 12(1) of the M1 Theft Act 1968 (taking motor vehicle or other conveyance without authority etc.);

(c) an offence under [F4 section 103(1)(b) of the Road Traffic Act 1988] (driving a motor vehicle while disqualified);

(d) an offence mentioned in the first column of Schedule 2 to the M2 Magistrates’ Courts Act 1980 (criminal damage etc.) which would otherwise be triable only summarily by virtue of section 22(2) of that Act; and

(e) any summary offence specified under subsection (4) below.

(4) The Secretary of State may by order made by statutory instrument specify for the purposes of this section any summary offence which is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.

(5) A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments

F1 Words in s. 40(1) substituted (4.7.1996 with effect as mentioned in Sch. 1 Pt. II para. 39 of the substituting Act) by 1996 c. 25, s. 47, Sch. 1 Pt. II para. 34, Pt. III para. 39 (with s. 78(1)); S.I. 1997/683, art. 1(2)

F2 Words in s. 40(1) inserted (4.1.1999 for specified purposes and otherwise 15.1.2001) by 1998 c. 37, s. 119, Sch. 8 para. 66; S.I. 1998/2327, art. 4(2)(c); S.I. 2000/3283, art. 2(c)

F3 S. 40(3)(aa)(ab) inserted (3.2.1995) by 1994 c. 33, s. 168(1), Sch. 9 para. 35; S.I. 1995/127, art. Sch. 1, Appendix A

F4 Words substituted by Road Traffic (Consequential Provisions) Act 1988 (c. 54, SIF 108:1), s. 4, Sch. 3 para. 39

Modifications etc. (not altering text)

C1 S. 40 modified (1.12.1998) by 1998 c. 37, s. 52(6), Sch. 3 para. 6(8); S.I. 1998/2327, art. 4(2)

Marginal Citations

M1 1968 c. 60.

M2 1980 c. 43.