Gavigan & Anor, R (on the application of) v Crown Prosecution Service

LORD JUSTICE AIKENS: I will ask Mitting J to give the first judgment.

MR JUSTICE MITTING: The claimants (father and son) challenge the decision of District Judge Jacobs at Enfield Magistrates' Court on 13 March 2013 to refuse to stay a prosecution against them for three offences, contrary to section 4 of the Public Order Act 1986, as an abuse of process.

The facts, which give rise to this claim and that prosecution, are that shortly before midnight on 2 June 2012 an incident occurred outside the Drayton Arms Public House, Drayton Park Road, London N5. The claimants were arrested on suspicion of affray. They were interviewed; they denied wrongdoing; they were bailed to attend a police station on 4 July 2012. On 4 July they surrendered to their bail and both were issued with a penalty notice under section 2 of the Criminal Justice and Police Act 2001.

By section 2(4) a penalty notice is a notice offering the opportunity by paying a fixed penalty "to discharge any liability to be convicted of the offence to which the notice relates". The notice issued to each claimant related expressly to an offence, contrary to section 5 of the 1986 Act, summarised and paraphrased in the notice as "causing another alarm/distress during a fight O/S a public house". The notice gave to the claimants the option of paying a penalty of £80 within 21 days, or requesting a court hearing. An offence, contrary to section 5, was punishable only by a fine.

The claimants returned the notice on 6 July 2012 stating their wish to be dealt with by a court for the alleged offence.

The police file was then reviewed by another officer who decided to prosecute the claimants for, in the case of the first claimant, two offences contrary to section 4 of the 1986 Act, and in the case of the second claimant, one such offence. If convicted the claimants may be liable to a term of imprisonment of six months or a fine, or both.

The claimants contended that they had made their decision to contest the original charge on the footing that, if convicted, they would only be liable for a fine. Therefore it was an abuse to prosecute them for the more serious offence. They did not give evidence in support of that contention before the District Judge, but he accepted in paragraph 22 of his written ruling:

There is no authority directly in point, although two authorities provide some helpful guidance. The status of a notice was considered in R v Gore and Maher [2009] 1 WLR 2454 in which an incident had occurred in Liverpool which was initially believed by the officer, who issued a penalty notice, to involve only public disorder. In fact, it later transpired that a person had been the subject of quite a serious injury and had been assaulted.

Fixed penalty notices were issued to each of the defendants giving them 21 days in which to pay the penalty. It is not clear from the report whether they in fact paid that penalty, but on the following day, having reviewed the CCTV evidence of the incident, a different police officer, with the support of the CPS, decided that they should be charged with an indictable and more serious offence.

In the course of giving the judgment of the Court of Appeal (Criminal Division) the Lord Chief Justice made the following observations at paragraph 14:

As far as we can tell from the report the notice was in similar terms to that issued in this case. Those observations suggest that, as the law clearly states, payment of a penalty only discharges liability for the offence identified in the notice and not for any other, still less any other more serious offence.

On the facts in Gore and Maher it is true that the more serious offence was charged when the evidence, which gave rise to the charge, was discovered after the notice had been issued; but to erect that into a proposition that only in such circumstances can a prosecution for a more serious offence be brought is not justified by that authority.

R v Beedie [1997] 2 Cr App R 167 provides some assistance by analogy. It established the principle that a man may not be prosecuted sequentially for offences in escalating order. On the facts a landlord had failed to fulfil his duties under the Health and Safety Act in relation to gas appliances, which had leaked carbon monoxide and fatally poisoned the tenant. The landlord was prosecuted for an offence under section 3 of the Health and Safety Act 1974, to which he pleaded guilty and for which he was fined. He was later prosecuted for manslaughter arising out of precisely the same facts.

The trial judge refused to stay the proceedings as an abuse. The Court of Appeal held that, absent special circumstances, it was on the facts an abuse to prosecute him for manslaughter.

If, on the facts of this case, the claimants had paid the £80 penalty and not exercised their right to have the issue determined by the court, then it may be that by analogy with Beedie it might have been unfair subsequently to prosecute them for a more serious offence. If and when such an issue arises it will have to be determined. But on these facts the claimants get nowhere near bringing themselves within established authority or principle. There is simply no principle or policy reason that requires that a person, who has rejected the opportunity to pay a fixed penalty, as is of course their right, should not thereafter be prosecuted for any offence arising out of the same set of facts for those in respect of which the notice was issued.

The notice, although it might, perhaps should, contain a warning to the effect that payment of the penalty does not relieve the payer of potential liability for a more serious offence, does not alter the law which is, as was stated by the Lord Chief Justice in Gore and Maher, entirely clear. Payment of the penalty only relieves liability for the offence to which the notice relates.

Although the District Judge generously accepted that they might have been misled by the terms of the notice, the claimants like everyone else are deemed to understand the criminal law, especially when, as here, it is laid down in the statute.

In my judgment, the claimants get nowhere near establishing that it would not be fair to try them for the offences alleged against them under section 5 of the 1986 Act, and I would dismiss this claim.

LORD JUSTICE AIKENS: I agree. The claimants rely effectively on the wording of Part 3 of the Metropolitan Police Service penalty notice that was issued in respect of each of them. In this part of the notice it states:

The case of the claimants, put forward this morning by Mr Neil Corre, is that the effect of issuing a penalty notice by the Metropolitan Police Service is that prosecuting authorities are thereby electing to confine themselves to dealing with the events that gave rise to the notice within the confines of the section to which the notice applies, that is to say section 5 of the Public Order Act 1986. It is said that they are thereby precluding themselves from taking any steps in respect of those facts under any other section of that Act. Furthermore, Mr Corre submits that the effect of completing and signing Part 3 of the notice is that there is an implicit understanding on the part of the person who completes it that he is to be dealt with only in terms of the offence that is identified in the notice, namely the section 5 offence.

I cannot accept either of those arguments. Like my Lord I am entirely satisfied that the statute, that is to say the Criminal Justice and Police Act 2001, is absolutely plain in its terms in section 2(4), which defines: "penalty notice". It states that:

I also agree with my Lord, and indeed the judge, that it might be more sensible for the Metropolitan Police Service to consider amending the terms of Part 3 of the notice to make it plain that whether or not the penalty is paid that does not necessarily preclude bringing charges for further offences if appropriate.

I also agree with my Lord that if the claimants had paid the penalty notice then they might have been able to advance, more effectively, an abuse of process argument. But, on the facts of this case, given what did happen, I am quite satisfied that there is no unfairness in the decision now to charge them for the other offences, as my Lord has indicated. Accordingly I too would dismiss this claim.

MR HEPTONSTALL: My Lord, two matters arise. First, in the judgment given by Mitting J my note was that the review was by another officer and the CPS. My Lord, it is just a factual correction because the police had not delegated the authority to charge the CPS who were not involved at that stage. Perhaps those words could be deleted from the approved transcript.

MR JUSTICE MITTING: Certainly.

MR HEPTONSTALL: The second is the costs of today. I have provided a schedule. It may have come through the Administrative Court Office yesterday.

LORD JUSTICE AIKENS: I have not seen it. Has Mr Corre seen it?

MR CORRE: My Lord, yes, I have a copy.

MR HEPTONSTALL: Can I invite one amendment? It is perhaps easiest to do it to the final figure, that is to reduce it to £1,294.25. The reason is we have not gone beyond lunchtime today, so I only get a half day rate. If it is of assistance the figure by comparison for the schedule, provided in response by my learned friend and those who instruct him, was £7,307. I accept that they had to make the running, but --

LORD JUSTICE AIKENS: First of all, Mr Corre, is it accepted in principle that the costs have to be paid?

MR CORRE: I do.

LORD JUSTICE AIKENS: Have you any observations you want to make on the figures?

MR CORRE: I have no such observations.

LORD JUSTICE AIKENS: In which case we will make the costs order in the sum of £1,294.25.

MR HEPTONSTALL: The final matter, of course, is that having dismissed the application this stay is then lifted from the prosecution and the magistrates' court?

LORD JUSTICE AIKENS: Yes, that must follow.

MR CORRE: Yes.