LSA, R. v

This is an interlocutory appeal by the prosecution in a Court Martial case. It is brought under provisions of military law which mirror ss 58-61 Criminal Justice Act 2003. Those provisions provide the prosecution with a right of appeal against legal rulings made by the Judge Advocate, providing that the prosecution accepts that, in the event that the appeal fails to obtain leave or is abandoned, the defendant must be acquitted of each offence which is the subject of the appeal. That condition appears in article 4(8) Courts-Martial (Prosecution Appeals) Order 2006; SI 2006 No 1786, which provisions are identical to those applicable in civilian courts under section 58(8) Criminal Justice Act 2003. In R v R [2008] EWCA Crim 370 the condition was conveniently dubbed ‘the acquittal agreement’ (see paragraph 19).

The defendant was charged with two offences contrary to the Station Standing Orders of her military base. The gist of the two offences was (i) driving when unfit to do so through drink and (ii) dangerous driving. The offences were said to have been committed on the same evening. Although the prosecution submitted that they were in fact consecutive offences, relating to different pieces of driving, with the dangerous driving first, the Judge Advocate ruled (first) that they were in effect offences charged on the same facts. Having so ruled, he went on to direct acquittal on the charge of unfitness to drive. Those two decisions together constitute the first ruling here in question. Later in a second ruling he stayed the dangerous driving charge as an abuse of the process of the court. He found the reason to make both these rulings in a note at paragraph 32-29 of Archbold which in turn says that it is based upon R v Forest of Dean Justices, ex p Farley [1990] RTR 228. The Crown wishes to submit on appeal that both those rulings were wrong.

The Crown case, put shortly, is that the defendant attended a party at the quarters of a friend and drank a good deal. When she left, she insisted upon driving despite the strong efforts of two men and the hostess to prevent her. Eventually she agreed simply to park the car, with one of the men taking up position in the passenger seat, on his case to keep an eye on her. Instead of parking she drove the car towards the second man, who leaped onto the bonnet to avoid being struck and clung on to the windscreen wiper. With him in that position, it is alleged that she drove some 350 yards or so, until he fell off, struck his head on the kerb, lost consciousness and sustained a number of injuries. That was said to be the act of dangerous driving. When he got up and staggered off dazed, she drove a further 500 yards or so, apparently to check that he was alright. She and the first man helped him into his quarters. Then a little later she motored another 900 yards or so back to the place of the party, taking both men with her. The two journeys after the injury to the man on the bonnet were put as the driving when unfit. That is the Crown case. Whether it would be made good or not, if tried out, is undetermined.

The defendant’s case is that the evidence against her is untruthful and exaggerated, in part to support a compensation claim by the injured man, and that the two men were drunk. It appears that she denies that she had had more than a single drink and so says that she was not unfit or impaired in driving. As to the man on the bonnet, she contends that he jumped onto it as a joke, not to avoid being run over, and that all she did was to move her car very slowly in order to persuade him to get off. What facts might be found by the court, and whether the latter contention, if true, would provide any defence to dangerous driving are matters likewise undetermined.

Section 36(1) Air Force Act 1955 makes it an offence to contravene any provision of Station Standing Orders which is known to the defendant, or of which s/he might reasonably be expected to know. The relevant Station Standing Orders provided by Number 144:

“A person to whom these orders apply shall not within the station, whether on a road or otherwise:

(a)

drive….when unfit to drive through drink or drugs to such an extent that his ability to drive properly is, for the time being, impaired;

…..

(c)

drive a vehicle dangerously.”

The defendant was charged with separate offences contrary to section 36. The first alleged a contravention of Standing Order 144(a) (“the unfitness to drive charge”). The second alleges a contravention of Standing Order 144(c) (“the dangerous driving charge”). Both in his opening note and in opening the case to the court [E10], and again when the Judge Advocate raised the passage in Archbold at the close of the Crown case, the prosecutor made crystal clear which piece of driving was relied upon to support each charge. The driving with the man on the bonnet was relied upon as the dangerous driving, and the driving after he fell off was relied upon to support the charge of driving whilst unfit and impaired. That had been the position of the Crown since a pre-trial directions hearing. There was no complaint about it on the part of the defendant; she had clearly understood that throughout.

In the 2007 edition of Archbold’s Criminal Pleading, Evidence and Practice there appears in chapter 32, relating to motoring offences, the following statement, under the heading ‘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 JJ, ex p Farley [1990] RTR 228.”

The same words remain in the 2008 edition, although in that edition there follows a bare reference to R v Hartnett [2003] Crim LR 719.

It is clear that (i) no point arising from this passage was taken initially on behalf of the defendant, (ii) the Judge Advocate himself raised it, but (iii) no-one had or obtained the report of ex p Farley.

The Crown case was completed. At the half way stage in the trial the Judge Advocate raised, of his own motion, this passage in Archbold. He asked the prosecution to consider it. After a certain amount of discussion, attributable no doubt to the fact that the point had been raised unexpectedly, the positions of the parties were as follows.

The Crown submitted that:

For the defendant, Mr Blades submitted that the whole case should be stayed as an abuse of the process of the court. He accepted, eventually, that the evidence of drink was equally admissible upon the charge of dangerous driving as on the charge of unfitness to drive, although he contended (on what basis we cannot see) that if the dangerous driving charge had been tried alone, that evidence would have been less extensively investigated. He contended that it was too late for the prosecution to change its stance.

The Judge Advocate ruled, in effect, that the two charges were founded on the same facts. He said:

“Whilst the prosecution say that the two additional journeys are not based on the same facts I find this to be an artificial distinction and that the evidence of the evening as a whole is so entwined that the two charges are, in reality, based on the same facts. I conclude that the one is included in the other and the cumulative result is oppressive. Thus I conclude that this authority applies to the present case.

I therefore have to go on to consider whether the result is that Mr Blades’ application at the close of the prosecution case to stay proceedings succeeds…..I take the view that all the evidence adduced in the present trial would be admissible on either charge, of dangerous driving alone or unfit to drive alone. I do not consider that the defence has been taken by surprise and therefore suffered any real prejudice….I therefore reject the defence application for a stay of proceedings in relation to both charges.

The prosecution have indicated that should I rule that the authority does apply to this case they would wish to proceed on the dangerous driving charge alone. Therefore I will direct the court to find the accused not guilty in relation to the unfit to drive charge, which will be withdrawn.”

For the defendant, Mr Blades expressed himself content with the last-mentioned course. The prosecuting officer made no further observations. The Court was re-convened, and the Judge Advocate, as he had said that he would, directed it to return a verdict of not guilty on the unfitness to drive charge. That verdict was returned. The defendant stood acquitted.

The hearing was adjourned over lunch, with the defendant’s evidence expected to follow immediately on resumption. Over the adjournment, Mr Blades reconsidered the passage in Archbold. On resumption, he submitted that since there had been a verdict of acquittal on the unfitness to drive charge, it was an abuse of process for the defendant then to be tried on the dangerous driving charge. He based that on the final two sentences of the cited passage. Still there was no reference to any further authority. Still no-one went to look at ex p Farley.

In a reversal of the latter part of his ruling before lunch, the Judge Advocate accepted that submission. In consequence, he held that the continued prosecution of the defendant on the dangerous driving charge was an abuse of process. He directed himself that amendment to delete the unfitness to drive charge would be legally possible (apparently notwithstanding that by then the defendant had been acquitted of that charge). But he then said this:

“However, that does not get around the difficulty that there is clear authority that the prosecution should not bring dangerous driving and unfit to drive charges on the same charge sheet when based on the same facts…..I find that the Accused has been through the trial process such as to engage the rule against the subsequent trial on a more serious offence. Whether the accused was found not guilty or the charge withdrawn is, in my view, immaterial. It is the trial process itself putting the accused person in jeopardy that is the essential element. Here the prosecution case has gone all the way through to completion. I therefore conclude that the Accused has been tried thus a further trial on a more serious offence would amount to an abuse of process.”

The prosecutor thereupon asked for a short adjournment to consider appeal. In the course of brief exchanges on that topic, Mr Blades twice offered it as his opinion that leave (for appeal) was not required. The prosecuting officer at one stage remarked “Well, I have asked for leave, sir”.

After a short time for consideration, the prosecutor notified the court that he intended to appeal against both rulings. Nothing more was said by anyone about leave. It was accepted that that meant that the trial on the dangerous driving charge fell to be adjourned pending hearing of the appeal, and with the assent of both parties the Judge Advocate so informed the members of the court. All that took place on 13 December 2007.

On the following day (14 December), the prosecutor contacted the Judge Advocate and asked him to issue the statutory form PA1 giving leave to appeal. The Judge Advocate did so. With it he sent a letter in the following terms:

“1.

A terminating ruling in relation to the second charge of dangerous driving by the Judge Advocate.

2.

The prosecution having given notice of appeal under Article 4 CM(PA) O 2006.

3.

The defence having indicated that they had no representation to make in accordance with Article 3(2) CM(PA)(SP) O 2006.

4.

The Judge Advocate having granted leave to appeal

5.

On receipt of written confirmation by the prosecution in accordance with Article 4(8) CM(PA)O 2006, an appeal is granted on the basis that the terminating ruling was wrong in law.”

The Crown’s notice of appeal is a notice in respect of both rulings and both charges. It contains an acceptance that the defendant should be acquitted of the charges if the appeal is abandoned, or if leave is not obtained. It is dated 19 December, six days after the hearing had concluded.

These are new provisions. They were clearly unfamiliar to all. We appreciate that their possible application arose unexpectedly in the present case, since no one had anticipated the point raised by the Judge Advocate on the passage in Archbold. Sadly, however, a great deal has gone wrong.

The prosecution right of appeal under Article 4 is, just as is its civilian equivalent under s 58 Criminal Justice Act 2003, an interlocutory appeal. The assertion to the contrary made on behalf of the defendant in the course of argument was wrong. The scheme for these appeals is that the proceedings in the court below stand adjourned pending the hearing of the appeal: see Article 4(10), the mirror of s 58(10), under which the ruling is to have no effect pending the outcome of the appeal.

The prosecutor could have given notice under Article 4 that he intended to appeal the first ruling, and if he had, that ruling would then have been of no effect pending appeal: see Article 4(10). However, he did not do so. Instead, the ruling was given effect by the directed acquittal of the defendant on the first charge of unfitness to drive. There is no power to appeal, under Article 4, following acquittal by the tribunal of fact. Nor would there be any such power to appeal under s 58 Criminal Justice Act 2003 following acquittal by a jury in the Crown Court. The prosecution has no appeal against acquittal; the only possible procedure open to it is a reference on a point of law by the Attorney-General under s 36 Criminal Justice Act 1972. That of course is a procedure which determines the law but does not affect the acquittal of the particular defendant. No such reference is before us. For these reasons, we cannot entertain the Crown’s appeal in respect of the first charge of unfitness to drive.

As to the ruling relating to the second charge, it is necessary to appreciate that the right of appeal is conditional upon Article 4(4) and (8), which are the exact mirrors of s 58 (4) and (8). The Order begins by providing by article 4(2) that :

“The prosecution may appeal in respect of the ruling in accordance with this article.”

In other words, the right of appeal can be exercised if but only if the rest of the article is complied with. Section 58(2) of the statute is in identical terms. Next, the Order provides by Article 4(4):

“(4)

The prosecution may not appeal in respect of the ruling unless –

(a)

following the making of the ruling, it

(i)

informs the court that it intends to appeal, or

(ii)

requests an adjournment to consider whether to appeal, and

(b)

if such an adjournment is granted it informs the court following the adjournment that it intends to appeal.”

Thus it stipulates that the prosecution can only appeal if it tells the court it is going to do so, either immediately following the ruling or after time to reflect has been granted. But the Order (like the statute) goes on to impose a further condition on when the prosecution can inform the court that it intends to appeal. The further condition is in Article 4(8) (identical to s 58(8)):

“The prosecution may not inform the court in accordance with paragraph (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the charge or each charge which is the subject of the appeal the accused in relation to that charge should be acquitted of that charge if either of the conditions mentioned in paragraph (9) is fulfilled.”

The paragraph 9 conditions are failure to obtain leave to appeal or abandonment of the appeal. We draw attention to the words “at or before that time”.

The transcript demonstrates that at no time on 13 December did the prosecutor inform the court that he agreed that the defendant should be acquitted of either charge if the paragraph 9 conditions should be fulfilled. Indeed, the Judge Advocate’s letter of the following day shows that the prosecution had still not appreciated then the need to give the article 4(8) undertaking. The article 4(8)/s 58(8) undertaking (or ‘acquittal agreement’: see R v R [2008] EWCA Crim 370 at para 19) is crucial to this new right of appeal. It is that which determines whether there is a right of appeal or not. The new right of appeal given by article 4/section 58 is often loosely referred to as applicable to ‘terminating rulings’. But that expression appears nowhere in the Act or Order. On the legislation as enacted is apt only to confuse and is best avoided. The criterion for the right to seek leave to appeal is the giving of the acquittal agreement as acceptance of the price of failure. In the present case the Crown did not accept this price of failure until the service of the written notice of appeal; that notice of appeal bears the date 19 December, six days after the hearing at which the rulings were made.

We accept that in construing Article 4(8) (and for that matter its civilian equivalent section 58(8)) the court’s task is to ascertain from the terms of the legislation what Parliament intended to be the consequences if it is not complied with: see for example R v Clarke & McDaid [2008] UKHL 8; [2008] 1 WLR 338, in which the indictment had not been signed. For the Crown, Mr Whittam QC submits that at least where the ruling in question is indeed one which brings the prosecution to a halt, as these rulings did, Parliament cannot have intended that the appeal should fail simply because the acquittal agreement was given late, given as it was in the written notice of appeal. We understood him to reserve his position on a case where the ruling was not conclusive against the Crown, but merely sufficiently disadvantageous for the Crown to be prepared to appeal at the price of an acquittal agreement. By contrast, for the defendant, Lord Thomas QC contends by reference to the Parliamentary history that what is now Article 4(8)/section 58(8) was deliberately inserted to allay fears that there would be a flood of appeals and/or that the Crown might initially give notice of appeal but then change its mind, thus inducing unfair uncertainty in the mind of an accused person. It is his contention that Article 4(8)/section 58(8) was deliberately extended to all appeals, whether conclusively fatal or those which the Crown is prepared to treat as justifying the acquittal agreement.

The exact Parliamentary history may be open to debate, and in any event the reasoning of different members of both Houses may well have diverged. We accept, however, that what is in Article 4(8) and section 58(8) was deliberately extended to appeals against rulings which the Crown chooses to treat as fatal as well as to those which are ipso facto fatal. But whatever may be the precise Parliamentary history, we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with s 58 of the Criminal Justice Act 2003, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms. It may be that the new right could have been as effectively controlled if the statute and order had provided that whether or not an undertaking in the terms of article 4(8) was given in open court, any appeal was to be on terms that if leave were refused, or the appeal abandoned, or it failed in due course, acquittal should follow. Or it may be that alternative form of control would not be so effective. What is clear is that alternative form of control is not what has been enacted. The words ‘may not….unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution “may not” inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset. Nor can we see any proper basis of construction under which what is in section 58(8)/Article 4(8) can be read differently according to whether the ruling under challenge is ipso facto fatal to the prosecution or one in relation to which the Crown chooses to give the acquittal agreement. There would, moreover, be considerable scope for argument about which category some rulings fall into. On these grounds alone, we are unable to see that we have any jurisdiction to hear the appeal against either ruling.

As we have made clear, Article 4 of the Order is in terms materially identical to section 58 Criminal Justice Act 2003. Prosecutors who wish to launch appeals against rulings must give the article 4(8)/section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.

It is necessary also to consider the rules as to leave. Here there is a limited divergence between the rules applicable at Court-Martial and those applicable in the Crown Court. In both courts a Crown appeal may be brought only with the leave of either the lower court or this court. For Courts-Martial that is stipulated by article 3(4). The assertion made at the hearing on behalf of the defendant that no leave was required was wrong. The Courts-Martial (Prosecution Appeals) (Supplementary Provisions) Order 2006 then contains provisions specific to Courts-Martial for the making of application for leave. It provides, by article 3:

“(2)

Before deciding whether or not to grant leave to appeal, the judge of the court shall hear oral representations from the accused.

(3)

The Judge Advocate shall decide whether or not to give leave to appeal on the same day on which an oral application for leave to appeal is made to that judge advocate….

(5)

If the judge advocate gives leave to appeal he must issue a certificate in Form PA 1….”

As we have said, although the substantive provisions governing the right of appeal are the same for Courts-Martial as for Crown Courts, the procedural rules for making an application for leave are not the same. The procedural rules relating to Crown Court trials are to be found in the Criminal Procedure Rules 2005, as amended, part 67 (Archbold 2008 paragraph 7.259a). For the Crown Court, those rules allow for the making of an application in writing for leave, and they do not command an oral hearing.

In this case it is the Courts-Martial rules which apply. They require an oral hearing. Even if the prosecutor’s single remark noted at paragraph 16 above constituted an oral application for leave, it is clear that it was not dealt with. In consequence the Judge Advocate heard no oral submissions from the defendant. An oral application could have been made on a later date, but it was not, and if it had been, the Judge Advocate would have been required to hear oral submissions. The Judge Advocate’s letter and certificate of 14 December refer to, but do not comply with, Article 3 of the 2006 Supplementary Provisions Order. If this error had stood alone, we could have cured it by ourselves granting leave to appeal, and might well have done so. But the acquittal on charge one, and the absence of proper notice under Article 4(8) are otherwise fatal to this appeal, and so a grant of leave by us is not possible.

The consequence of that is that we cannot rule upon the questions of law raised by this purported appeal. What follows is therefore necessarily obiter.

We do not, however, think that we should leave this appeal without making some things clear. In doing so, we think that we should say nothing about the facts of the present case, since the effect of our decision is that the defendant stands acquitted of the one charge, whilst the other charge has been stayed, and no appeal against those orders can be entertained. No decision on where the truth lay has ever been arrived at. We have, however, had the benefit of careful submissions on both sides as to the effect of ex p Farley and the accuracy of the passage in Archbold.

It is a great pity that the report in ex p Farley was not obtained. We appreciate that the Road Traffic Reports may well not be to hand in places where Courts-Martial sit, but these days the internet is available. There are two critical features of ex p Farley. Firstly, it was a case which depended on the fact that the charge of excess alcohol could only be tried summarily in the magistrates’ court, whereas the other charge faced by the defendant, which was of causing death by reckless driving, was triable only on indictment in the Crown Court. Secondly, it was a case of a deliberate and quite improper prosecution manoeuvre designed to exploit the involvement of the two separate courts. The Crown set out to prosecute the summary proceedings (excess alcohol) first. That would enable it to take advantage of the provision which would there apply placing upon the defendant the burden of proving that he had taken drink after the accident and before testing. Then it proposed, when it came to the subsequent trial on the much more serious charge in the Crown Court, to adduce any conviction for the excess alcohol offence under section 74 Police and Criminal Evidence Act 1984. That amounted to trying to reverse the burden of proof on the very serious charge of causing death by reckless driving. Moreover, ex p Farley was a case in which this was proposed where the only basis for alleging reckless driving was that the driver was unfit through drink. It is to be distinguished from a case in which there is additionally an allegation of a dangerous manoeuvre or otherwise driving in a dangerous manner.

In a work of generally remarkable accuracy, the passage in Archbold could usefully be re-considered. We do not doubt that it might in some circumstances be oppressive to prosecute for both excess alcohol in one court and an indictable offence in another, but ex p Farley does not contain any general rule that it always will be so. A simple example where it might not be wrong is where disqualification, mandatory on conviction of an excess alcohol offence, would not be available on the indictable offence. Moreover, the mere bare reference to Hartnett [2003] Crim LR 719, albeit with an introductory ‘cf’, might be taken by readers to indicate that that case does not affect the text which goes before. It does. There the defendant pleaded guilty in the magistrates’ court to an excess alcohol offence. He was committed to the Crown Court for trial on an associated charge of dangerous driving on the same occasion. In due course he pleaded guilty to that also. He failed in the contention that to prosecute him for both was an abuse of the process of the court. This court explained the special features of ex p Farley, which it is apparent had been misunderstood in that case as they have been completely overlooked in this. It did so in terms which make it clear that ex p Farley is not authority for what is said in the passage in Archbold.

The last two sentences in the passage from Archbold do not depend on ex p Farley, but rather on the line of cases beginning with Elrington (1861) 1 B & S 688; 121 ER 870, and considered in the well known case of Connolly v DPP [1964] AC 1254. This principle represents a modest common law extension of the rules of autrefois convict and acquit. It certainly means that it may well be oppressive, and an abuse of the process of the court, to prosecute successively in different trials on the same facts. For an example, see Phipps [2005] EWCA Crim 33. But that is because the Crown ought ordinarily to make up its mind what charges it wants to bring and put them all before the same court on the same occasion. The Elrington principle is a rule against sequential trials. It is in no sense breached if two charges arising out of the same facts are put before the same court on the same occasion. That might have been gleaned from the use of the word again in the proposition “he is not to be tried again….”, but it would certainly have been apparent if anyone had looked at the cases. To the contrary, sometimes the presentation of different charges in the same court, arising from the same facts, is positively the right thing to do since it may enable the tribunal of fact to determine the several issues which arise - for example whether driving was dangerous because of the manoeuvre undertaken or also because of the driver was unfit through drink, or, in an allegation of homicide, which party was at the outset carrying a firearm which was used.

If in a particular case one charge really adds nothing, so that its inclusion is oppressive, the court has ample power to require the prosecution to justify it, and if the Crown will not amend by deleting it, to stay it. Nothing in the foregoing is intended to cast any doubt upon the jurisdiction of the Court to prevent, by way of stay, something which genuinely amounts, on the facts of a particular case, to abusing the Court’s process so as to cause unfair prejudice to a defendant. Further, even if a trial proceeds, properly on the facts of a particular case, on both charges, it may well be that no separate penalty will be appropriate upon one charge if the real gravity of what has been done can properly be dealt with by sentence on the other, principal charge.

There is a difference (and sometimes a great deal of difference) between (i) two charges being founded on the same facts and (ii) two charges sharing some facts in common.

We are not to be taken, by silence, to endorse the decision that the correct way to give effect to the first ruling in this case, even if it were right, was to direct acquittal. The more usual way of dealing with the matter would be to amend the indictment/charge sheet by deletion of the offending charge, or (more often) to discharge the court from giving a verdict upon it. Such a charge could also be stayed if to prosecute it were truly an abuse of the court.

The power to direct acquittal is by no means limited to the case in which the prosecution offers no or no further evidence. Section 17 Criminal Justice Act 1967, to which reference was made in the present case, applies to acquittals (on the offering of no evidence) without the decision of the tribunal of fact, court-martial or jury. It has no application to a directed acquittal by that tribunal of fact, which may often occur, for example where the judge rules that there is no case to answer.

For the reasons set out in paragraphs 19-30, this appeal by the Crown must be dismissed for want of jurisdiction. The consequence is that the rulings of the Court-Martial must stand. That means that the merits or demerits of this prosecution have never been determined.