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: The appeal succeeded. On a proper application of the principles outlined in Beedie and Phipps, the only proper course was to stay the second set of proceedings. No special circumstances had been established to allow a second attempt: ‘In our view, a change in position on charging made solely by reference to the new expert report obtained following initial conviction and sentence and founded on the same facts that were in existence at the time of the first charging decision cannot, in the circumstances of this case, amount to a special circumstance sufficient to justify refusing to grant a say.’ It was unfair and oppressive for the appellant to have to face a second prosecution.
David LJ, Lavender, Pepperall JJ
[2020] EWCA Crim 1319
Bailii
England and Wales
Citing:
Cited – Henderson 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 . .
Cited – Regina 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.
Cited – 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 . .
Cited – Regina 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 . .
Cited – LG, Regina v CACD 27-Mar-2018
Appeal from preliminary ruling refusing a stay of the prosecution as an abuse of process.
Held: A change of mind about the appropriate charging decision is not of itself a bar to a prosecution . .
Cited – 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 . .
Cited – Dwyer 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 . .
Cited – Quelch v Phipps QBD 10-Jan-1955
A bus driver failed to stop and provide information pursuant to section 22 of the Road Traffic Act 1930. A passenger had stepped off the back of the bus in Oxford High Street whilst the bus was moving and the passenger was injured. The driver was . .
Cited – LSA, 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 . .
Cited – Antoine v Regina CACD 15-Oct-2014
The Court was asked whether a prosecution should have been stayed as an abuse of the process of the court where the defendant had already been convicted and sentenced for lesser offences arising out of the same facts. The defendant was found with a . .
Cited – Foy, Regina v CACD 27-Feb-2020
Availability of defence of diminished responsibility.
Held: On appeals against conviction, the appellate court will ordinarily also be very wary of fresh evidence in the form of what is sometimes called ‘expert shopping’. . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 09 November 2021; Ref: scu.654613