Connelly v Director of Public Prosecutions: HL 1964

Plea of Autrefois Acquit is Narrow in Scope

The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow principle of autrefois, applicable only where the same offence is alleged in a second indictment. For the doctrine to apply it must be the same offence both in fact and in law. It was more than that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, and the court rejected a suggestion that autrefois must apply where an accused has been prosecuted on substantially the same facts. The plea of autrefois acquit must be given a limited scope. With certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial.
The doctrine of res judicata occupies the same place in the civil law as the doctrine of autrefois acquit or convict does in the criminal law.
Lord Reid said: ‘So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer.’ and ‘many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope . . I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial.’
Lord Pearce said: ‘It might seem at first sight that the second prosecution here is a breach of the ‘well-established principle of our criminal law’ referred to by Cockburn in R v Elrington . . that ‘a series of charges shall not be preferred’. Since the time when those words were spoken the joinder of charges in an indictment has been deliberately facilitated by the Indictments Act, 1915, and there is thus the more reason for saying that in general the prosecutor should join in one indictment all the charges that he wishes to prefer in respect of one incident. It would be an abuse if he could bring up one offence after another based on the same incident, even if the offences were different in law, in order to make fresh attempts to break down the defence.’ and ‘a narrow view of the doctrines of autrefois acquit and convict, which has at times prevailed, does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underly the pleas.’
Lord Morris said: ‘generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.’ The Court possesses an inherent jurisdiction at common law to control its own proceedings: ‘There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.’
Lord Devlin said: ‘it is absolutely necessary that issues of fact that are substantially the same should, whenever practicable, be tried by the same tribunal and at the same time.’ and ‘But a second trial on the same or similar facts is not always necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule. Without attempting a comprehensive definition, it may be useful to indicate the sort of thing that would, I think, clearly amount to a special circumstance . . I do not think that it is obligatory on the prosecution, in order to be on the safe side, to put into an indictment all the charges that might conceivably come within rule 3, leaving it to the defence to apply for separation. If the prosecution considers that there ought to be two or more trials, it can make its choice plain by preferring two or more indictments. In many cases this may be to the advantage of the defence.’ and
‘For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.’

Lord Reid, Lord Devlin, Lord Pearce, Lord Morris of Borth-y-Gest
[1964] 2 AC 1254, [1964] 2 All ER 401
England and Wales
DisapprovedRex v Jones CCA 1918
Where the charge is one of murder, no other charge may be added to the indictment. . .
ApprovedRegina v Elrington 9-Nov-1861
The appellant’s co-accused had been summarily tried and acquitted of common assault. The accused was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm. The accused demurred.
CitedRegina v Miles 1890
. .
CitedSambasivam v Director of Public Prosecutions, Federation of Malaya PC 1950
(Malaya) The effect of a verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. It is binding and conclusive in all subsequent . .
CitedWemyss v Hopkins 1875
The defendant had been convicted under a statutory offence, on the basis that as a driver of a carriage he had struck a horse ridden by the prosecutor causing hurt and damage to the prosecutor. He was then summoned again for what appeared to be a . .

Cited by:
CitedRegina v Beedie CACD 11-Mar-1997
Stay for Extended Autrefois Convict
The plea of autrefois convict applies only if the legal substance of the charges is same but the judge has a discretion. The plea is not limited to Connelly v DPP definitions, but is still narrow.
A 19-year-old girl died of carbon monoxide . .
CitedRegina v Riebold QBD 1967
When looking at a plea of autrefois acquit, the court had to ask whether there were any exceptional circumstances which would make it not oppressive to grant the prosecution leave to proceed.
Barry J said: ‘I feel that I am bound to apply . .
CitedRegina v Police Complaints Board ex parte Madden and Rhone 1983
Double jeopardy, properly understood, is best described in the phrase ‘No man should be tried twice for the same offence’. The court emphasised the word ‘tried’. . .
CitedRegina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
CitedRegina v Chichester Justices ex parte Stephen Alexander Crowther Admn 14-Oct-1998
The defendant sought judicial review of an order made in 1998 issuing a warrant for his committal for failure to pay a confiscation order made in 1991. He had served 6 years imprisonment, and in default of payment a further 18 months. He was . .
CitedRuth Ellis v Regina CACD 8-Dec-2003
In 1955, the deceased defendant was convicted of murder, and later hanged. The court considerd a post mortem appeal by the CRCC and her family. It was suggested that she should have been found guilty of manslaughter having been provoked by the . .
CitedRegina v Derek William Bentley (Deceased) CACD 30-Jul-1998
The defendant had been convicted of murder in 1952, and hung. A court hearing an appeal after many years must apply laws from different eras to different aspects. The law of the offence (of murder) to be applied was that at the time of the offence. . .
CitedDirector of Public Prosecutions and others v Tokai and others PC 12-Jun-1996
(Trinidad and Tobago) The appellant had been charged in 1981 with offences alleged to have been committed shortly before. The proceedings continued until his appeal for one was dismissed in 1988. The wounding charges were proceeded with only in . .
CitedPhipps, Regina v CACD 14-Jan-2005
The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . .
CitedRegina v Forest of Dean Justices ex parte Farley CACD 1990
The prosecutor had charged the defendant first with drink driving so as to take advantage of the provision placing upon the defendant the burden of proving that he had taken drink after the traffic accident and before testing. It iintended then to . .
CitedRegina v Z (Prior acquittal) HL 22-Jun-2000
The defendant on a charge of rape had been tried and acquitted of the rape of different women on three previous occasions in three separate trials. The prosecution wished to call those three complainants to give similar fact evidence in support of . .
CitedRegina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
CitedRegina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
CitedCPS (Sussex) v Mattu CACD 17-Jul-2009
The defendant faced a charge of conspiracy to import Class A drugs. Detailed discussions had taken place between the prosecutor and defendant under which he had pleaded guity on a agreed basis of fact. The prosecutor then proceeded with a furthe . .
CitedLSA, Regina v CACD 16-May-2008
(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no . .
CitedDirector of Public Prosecutions v Alexander Admn 27-Jul-2010
The defendant had crashed his car after driving off with a girl, and while being chased by another car driven by her boyfriend. The police first cautioned him for false imprisonment, but then prosecuted him for careless driving. The prosecutor . .
CitedCoke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
CitedLong, Regina (on The Application of) v Secretary of State for Defence Admn 15-Jul-2014
The claimant’s son had been one of six soldiers of the Royal Military police to have been murdered by an armed mob attacking a police station in Iraq in 2003. The said that their deaths had not been properly or sufficiently investigated. The corone . .
CitedMaxwell, Regina v SC 20-Jul-2011
The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .
CitedYasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
CitedWangige, Regina v CACD 14-Oct-2020
Second Prosecution on Same Facts was An Abuse
The defendant appealed his conviction of causing death by dangerous driving. He appealed from the refusal of the judge to give a stay the prosecution as an abuse He had been previously prosecuted for a lesser offence on the same facts.
Held: . .
CitedDwyer v Regina CACD 11-Feb-2011
Further fresh evidential materials were sought to be relied upon in a second prosecution of the defendant.
Held: ‘In our judgment, the words ‘the same or substantially the same facts’ or ‘the same incident’ refer to the relevant state of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.180637

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