Phipps, R v

J U D G M E N T

1. LORD JUSTICE CLARKE: This is the judgment of the court.

2. The appellant is James Phipps, aged 39. On 28th October 2004, in the Crown Court at Kingston, before His Honour Judge Haworth, he pleaded guilty to dangerous driving. On 25th November 2004 he was sentenced to eight months' imprisonment and disqualified from driving for two years. He appeals against conviction and sentence by leave of the single judge, Cox J, who refused bail but directed expedition.

3. At about 9 am on 29th October 2003 the appellant drove his vehicle, a Ford Explorer, south in the wrong direction on the northbound carriageway of the A3 and by the New Malden underpass collided head on with an oncoming vehicle travelling in the outside lane. A breath test was taken at the scene, which registered positive. The appellant was arrested on suspicion of driving with excess alcohol. He was taken to Kingston Police Station, where an evidential specimen of breath was taken at 10.17 am. The lower reading was recorded as 50 microgrammes of alcohol per 100 millilitres of breath, which compares with the legal limit of 35 microgrammes. A blood sample was then taken, which showed recent use of cocaine by the appellant.

4. The victim was injured but fortunately less seriously than might have been the case. Her injuries included redness, abrasion and bruising over the breast bone or sternum, which was tender on palpation, and a swollen and bruised right wrist. Her right shoulder blade and hip were also tender and there was bruising across the lower abdominal region and on both knees. The appellant suffered broken ribs.

5. The appellant was interviewed on the day of the accident. He said that he could not remember what had happened but admitted that he had drunk between four and six Jack Daniels and coca-cola. His last drink was estimated to have been consumed between about 1.30 and 2 am. He was bailed to return to Kingston Police Station on 17th December 2003. On that day he was charged with driving with excess alcohol contrary to section 5 of the Road Traffic Act 1988. He made no reply.

6. The appellant subsequently attended Kingston Magistrates' Court on 23rd December 2003 and pleaded guilty to driving with excess alcohol. He was fined £300 and disqualified from driving for twelve months.

7. The appellant was subsequently summonsed in relation to dangerous driving in late January or early February 2004. It appears that what happened was that after the appellant was sentenced by the magistrates the victim or her family contacted the press complaining about the level of the sentence. Perhaps as a result of reports in the press, the prosecuting authorities considered the matter further and the appellant was summonsed in relation to dangerous driving in late January or early February 2004. The matter came before His Honour Judge Haworth on 28th October 2004 when it was submitted that, having been convicted (albeit after a plea) and sentenced for driving with excess alcohol, it was an abuse of the process for the Crown to proceed subsequently against him for dangerous driving where the dangerous driving arose out of the same or substantially the same facts.

8. The judge ruled that there was no abuse of process. He held that the prosecution for dangerous driving did not arise out of the same facts as the earlier prosecution for driving with excess alcohol. It was following that ruling that the appellant pleaded guilty.

9. Mr Amarasinha submits on behalf of the appellant that the judge was wrong so to hold. It appears to us that in order to determine this question it is necessary first to identify the correct legal principles and then to apply them to the facts.

Principle

10. The propositions advanced on behalf of the appellant may be summarised as follows. 1. Subject to proposition 2, no one should be punished twice for an offence arising out of the same or substantially the same set of facts. To do so would offend the principle that a defendant is not to be tried again on the same or substantially the same facts for more serious offences on an ascending scale of gravity. 2. Proposition 1 does not apply where the prosecution shows that there are special or exceptional circumstances which make it just for a second prosecution to be brought. Mr Amarasinha relies in particular upon R v Elrington (1861) 1B&S 688; Connelly v DPP [1964] AC 1254 and R v Beedie (1987) 2 Cr App R 176. In the particular circumstances of this case he also relies upon R v Forest of Dean Justices, ex parte Farley [1990] RTR 228 and this passage in Archbold 2005 at paragraph 32-29:

" Order of trials where there is an excess alcohol charge .

Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is that where a person is tried on a lesser offence, he is not to be tried again on the same facts for a more serious offence. A contrary course of action would amount to an abuse of the process of the court: see R v Forest of Dean Justices, ex parte Farley [1990] RTR 228 DC."

11. In our judgment, subject to some further elaboration, propositions 1 and 2 are correct. They are soundly based on the authorities relied upon.

12. The only scope for possible debate is whether the principle applies not only where the facts are the same but also where they are substantially the same and precisely what that means.

13. The classic statement of principle is that of Cockburn CJ in Elrington . In that case the co-accused has been summarily tried and acquitted of common assault. He was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm. The accused demurred. The demurrer was upheld. The actual basis for the decision was that, by virtue of sections 28 and 29 of the Offences Against the Person Act 1828, a certificate of acquittal of common assault released the accused "from all further or other proceedings, civil or criminal, for the same cause". Had the justices thought the assault to be an aggravated one, they would, according to the procedure of the day, have sent it for trial. However, Cockburn CJ made the following observation at page 696:

"... we must bear in mind the well-established principle of our criminal law that a series of charges shall not be preferred, and, whether a party, accused of a minor offence is acquitted or convicted he shall not be charged again on the same facts in a more aggravated form."

14. That principle was approved by the House of Lords in Connelly . This can perhaps be most clearly seen in the speech of Lord Devlin. He said at pages 1356 and 1358 that the principle was essentially the same as that exemplified in the civil law in the classic statement of Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at pages 114-115. Lord Devlin expressly approved the statement of Cockburn CJ at pages 1357. However, as we read his speech, he did not restrict the principle to a second trial on the same facts, but extended it to a trial on "the same or similar facts": see page 1360. See also per Lord Reid (at page 1296) where he said:

"So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer."

15. Lord Pearce put it in this way at page 1367:

"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 and approved by Pollock B in R v Miles [(1890) 24 QB 243] 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."

16. We note in passing that in the R v Forest of Dean Justices case in the Divisional Court Garland J said at page 235K that Connelly was authority for these propositions among others:

"(1) Pleas of autrefois acquit and autrefois convict must relate to a crime which is the same, or in the effect the same, as that originally charged. (2) There is a wider principle that a second trial involving the same or similar facts may in the discretion of the court be stayed if to proceed would be oppressive or prejudicial and therefore an abuse of the process of the court."

17. We agree, subject to this. The discretion is not unfettered and is a very different discretion from that exercised in the usual abuse of process case based, say, on excessive delay, where the burden of proof is on the defence.

18. This can be seen from the decision of this court in Beedie . In that case a 19-year-old girl died of carbon monoxide poisoning in a rented flat. The CO ² gas could not escape from a gas fire because the chimney was blocked. The chimney had not been properly cleared of debris over a long period of time. The appellant was the landlord. He pleaded guilty to an offence under section 3(2) and section 33 of the Health and Safety at Work Act 1974. There was a subsequent inquest at which he gave evidence and made a number of admissions. He was later prosecuted for manslaughter. The trial judge, Clarke J, rejected a submission that the proceedings should be stayed as an abuse of process. He carried out the kind of balancing exercise which is carried out in the ordinary case of an application for a stay where the burden is on the defendant and an important question is whether the defendant can have a fair trial: see, eg, Attorney-General's Reference No 1 of 1990 (1992) 95 Cr App R 296.

19. This court held that that approach was wrong and that the judge should have applied propositions 1 and 2 above. Rose LJ, giving the judgment of the court, said at page 175C:

"In any event, consideration of whether or not the appellant could have a fair trial, which would have been material to an application to stay for abuse of process because of delay, was inappropriate. A stay on such a ground is an exceptional course (see Attorney-General's Reference (No 1 of 1990 ) at page 303) and the onus is on the defence to show that, on the balance of probabilities, no fair trial can be held; whereas the general rule presently under consideration is that there should be a stay, and it is for the prosecution to show that, for special circumstances, there should not be."

In Beedie it was held that there were no specific circumstances and the appeal was allowed.

20. It appears to us that the above principles are supported by the approach of the Divisional Court in R v Forest of Dean Justices Ex parte Farley even though the problem being considered there was somewhat different, as was the problem considered in R v Hartnett [2003] Crim LR 719. In neither of those cases was the court concerned with a case where the second set of proceedings was only commenced after the first set of proceedings had been determined, which is the position here and was the position in Beedie . The correct question on the authorities in a case of this kind is whether the second set of proceedings arise out of the same or substantially the same facts as the first.

21. 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 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 (which is in essence that identified in the civil law by Wigram CJ in Henderson v Henderson ) 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. It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course. Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried. Thus it is a matter of case management where and when the trial or trials should take place.

22. In these circumstances we are unable to accept the approach suggested by Mr Amer on behalf of the Crown in his skeleton argument. He there submitted that the burden of establishing that the second set of proceedings amounts to an abuse of process is on the defence and that an abuse of process will occur when (a) the defence has suffered serious prejudice to the extent that a fair trial could not take place (see R (Ebrahim) v Feltham Magistrates' Court [2001] 2 Cr App R 23DC; ( b) the behaviour of the prosecution has been so bad that it is not fair that the defendant should be tried (see R (Ebrahim ); and (c) there has been an element of bad faith or at least some serious fault on the part of the prosecution (see R (Ebrahim) . None of the above applied, he submitted, and therefore no abuse of process had occurred.

23. In our view those submissions demonstrate precisely the same error as was made by the trial judge in Beedie . We cannot therefore accept them. For the reasons already given, the burden of establishing special or exceptional circumstances is on the Crown and the question is not whether a fair trial is possible. We turn to the facts.

The Facts

24. The judge held that the prosecution for dangerous driving did not arise out of the same facts as the prosecution based on excess alcohol. His reasons can be seen from observations which he made in the course of the argument. Thus he distinguished Beedie in this way at page 4 line 23:

"JUDGE HAWORTH: In Beedie , the breach of the Health and Safety Regulations and the allegation of manslaughter, I think it was, are absolutely the same, whereas in your case there is a distinction: one relates to the driving and one relates to the amount of alcohol in his blood."

A little later at page 5 line 7:

"MR AMARASINHA: ... the facts are the same though. He was driving--

JUDGE HAWORTH: No, they are not. The excess alcohol relates to alcohol in his blood. It does not relate to his manner of driving."

25. We have already referred to the judge's ruling in which he held that the offences did not arise out of the same facts and added that there was nothing unfair about the decision to prosecute this defendant for dangerous driving because there was evidence that he drove dangerously.

26. We should note that there was indeed evidence that the appellant drove dangerously quite apart from his condition: there was for example evidence of his veering from side to side in the wrong carriageway. The question is whether the judge was correct to reach the conclusion that he did.

27. In our judgment he was not. It is of course true that the offences are different, but that is always true in this kind of case; otherwise the second proceedings would be determined by a plea of autrefois convict or autrefois acquit, as the case might be. Further, it is not sufficient to say, as the judge did, that there was evidence of dangerous driving because it will always be the case that there is evidence in support of the charge in the second set of proceedings. The drink driving offence contains these ingredients: the Crown must prove that the defendant was driving a motor vehicle on a road or other public place with excess alcohol in his blood, urine or breath. Thus, if there had been an indictment, the particulars would have alleged that the defendant was driving on the A3 with excess alcohol in his blood. In the case of dangerous driving, as the indictment shows, the Crown had to prove that the appellant drove his car on the A3 at Malden dangerously. Both the allegations arose out of the fact that the appellant was driving his car on the A3 at Malden in an unlawful manner. In the drink driving case the nature of the driving was not relevant to conviction but was relevant to penalty. Mr Amer does not challenge that proposition. It is in any event supported by the sentencing guidelines supplied to magistrates which we have seen. In the dangerous driving case the condition of the appellant, induced by drink, was relevant to both the nature of the driving and in particular, on the facts of this case, to penalty. It was held in R v Woodward [1995] 2 Cr App R 388 that on a prosecution for causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988 as substituted, the fact that the driver was adversely affected by alcohol was a relevant circumstance in determining whether he was driving dangerously.

28. We should, however, note that we recognise that on the facts of this case, as we have already indicated, there was other independent evidence that the defendant was driving dangerously.

29. 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 the same incident, in much the same way as in Beedie both prosecutions arose out of the death of the victim caused by CO ² poisoning. Here the charges are different; so were they in Beedie , where the prosecution authority, under section 3 of the Health and Safety at Work Act 1974, simply had to prove that there was a breach of the duty in section 3(2) of that Act, which provides that "it shall be the duty of a self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practical, that he and other persons, not being his employees, who may be affected thereby, are not thereby exposed to risk to their health or safety", whereas in order to prove manslaughter the Crown had to prove that the death was caused by the appellant's gross negligence.

30. Mr Amer correctly conceded in argument that there was at the very least a substantial overlap between the facts of the two cases. Indeed - also in our view correctly - he conceded that a rational prosecutor would have considered at the outset what charges to bring arising out of the incident on the A3 that day. He submitted that it may be that in a busy prosecutor's office that consideration may have been overlooked. That may be so, but it appears to us that in a standard case of this kind there should be no difficulty for prosecutors considering at the outset what charges they wish to advance arising out of any particular incident.

31. In all these circumstances we conclude that the second proceedings arose out of the same or substantially the same facts as the earlier proceedings in the sense which we have indicated. Mr Amer correctly concedes that, if that is so, there are no special circumstances in this case which would entitle the Crown to bring the second set of proceedings. It follows that, in our judgment, the judge should have stayed the second proceedings as an abuse of process and that this appeal against conviction must be allowed.