Phipps, 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 abuse of process. He asserted that the rule in R v Erlington should have prevented his second prosecution. The Crown Court judge drew a distinction between the charges, saying that the first offence related to the amount of alcohol in the blood whereas the second offence related to the manner of the driving.
Held: The appeal succeeded.
Clarke LJ said: ‘The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce [in Connelly] makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded. The principle . . is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. ‘ The crown suggested that the charges complained of different behaviours: ‘both these prosecutions and the allegations in them arose out of the same or substantially the same facts, namely driving the appellant’s car on the A3 at Malden.’ The manner of the driving had been relevant to the penalty imposed on the first offence; and, on the second offence, the fault of driving with excess alcohol would be relevant both as to the nature of the driving (since the effects of alcohol potentially bore on the issues of driving dangerously) and as to the penalty for dangerous driving. The court then went on: ‘In all these circumstances, it seems to us that both these prosecutions and the allegations in them arose out of the same or substantially the same facts, namely driving the appellant’s car on the A3 at Malden. They both arose out of that same incident, in much the same way as in Beedie . . ‘
There were no special circumstances which might entitle the Crown to the second set of proceedings.

Clarke LJ, Poole, Elias JJ
[2005] EWCA Crim 33
England and Wales
CitedRegina v Hartnett CACD 2003
The defendant had pleaded guilty in the magistrates’ court to an excess alcohol offence. He was then committed to the Crown Court for trial on an associated charge of dangerous driving on the same occasion. He pleaded guilty to that also. He . .
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 . .
ApprovedRegina 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 . .
CitedConnelly 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 . .
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
CitedRegina v Miles 1890
. .
CitedRegina 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 Feltham Magistrate’s Court, ex Parte Ebrahim, Director of Public Prosecutions Admn 21-Feb-2001
The court considered how cases should be handled where video evidence of relevance to a defendant’s case had been destroyed, and the defendant asserted abuse of process.
Held: The discretion to stay proceedings should be employed only in . .
CitedRegina v Woodward (Terence) CACD 7-Dec-1994
On a prosecution for causing death by dangerous driving, contrary to section 1 of the 1988 Act, the fact that the driver was adversely affected by alcohol was a relevant circumstance in determining whether he was driving dangerously.’The fact (if it . .
CitedAttorney General’s Reference (No 1 of 1990) CACD 1990
A police officer attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those . .

Cited by:
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 . .
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

Updated: 08 January 2022; Ref: scu.226246