You are not currently signed in - enter your email address and password into the boxes below, or create a new account.

Double Jeopardy: Autrefois & Beyond

Victor Smith examines the circumstances in which it would offend the court’s sense of justice and propriety to proceed with a prosecution when the accused has faced that same or similar peril before. In such cases the defendant may plead autrefois or, where that is not applicable, seek a stay of the proceedings as an abuse of process of the court. First published in the New Law Journal at (2021) 171 NLJ 7933, p13 with Part 2 at (2021) 171 NLJ 7935.

Double jeopardy may enable a defendant to:

Autrefois

Double jeopardy, in its purest form, is encapsulated by the phrases 'autrefois convict' and 'autrefois acquit' meaning that the accused has been previously convicted or acquitted of the same offence and hence should not face the same peril again.  The parameters of the autrefois principal were identified by the House of Lords in Connelly v DPP [1964] AC 1254, [1964] 2 All ER 401, as being quite narrow.  Lord Devlin said: 'The word "offence" embraces both the facts which constitute the crime and the legal characteristics which make it an offence.  For the doctrine to apply it must be the same offence both in fact and in law.'  The autrefois doctrine is particularly important because the UK is not a signatory to Protocol 7 to the European Convention on Human Rights, article 4 of which gives the right not to be tried or punished twice for the same offence.

Exceptions

The autrefois principle is not discretionary, if the defendant is the subject of a valid previous conviction or acquittal, he may not be tried for the same offence again.  However, there are statutory exceptions, most notably in relation to appeals.  The prosecution may appeal to the High Court by way of case stated under s 111(1) Magistrates' Courts Act 1980 ('MCA') or s 28(1) Senior Courts Act 1981 on the ground that a decision, by respectively a magistrates' court or the Crown Court, to acquit the defendant was 'wrong in law' or 'in excess of jurisdiction'.  The case stated provisions are also available to a convicted defendant and s 142(2) MCA provides that the case against a person leading to conviction may be heard again by different justices if 'in the interests of justice'.  A defendant may expose himself to a retrial in the Crown Court by appealing against a conviction by a magistrates' court under s 108(1) MCA.  Part 9 of the Criminal Justice Act 2003 sets out a regime for prosecution appeals in the higher courts. 

An acquittal may be quashed, under ss 54 and 55 Criminal Procedure and Investigations Act 1996, if certain conditions are satisfied and it was tainted by interference with, or intimidation of, a juror or witness or potential witness.

Part 10 of the Criminal Justice Act 2003 provides a clear exception to autrefois acquit.  A person may be retried for specified offences considered to have a particularly serious impact on the victim or society in general.  These 'qualifying offences' include murder, attempted murder, manslaughter, kidnapping, rape, attempted rape, other specified sexual offences and drugs offences.  Application for an order quashing an acquittal has to be made to the Court of Appeal which will determine whether there is new and compelling evidence and whether a retrial is in the interests of justice.

No acquittal

Autrefois acquit only applies where there has been a lawful acquittal on the merits.  In Islington London Borough Council v Michaelides [2001] EWHC Admin 468, P prosecuted D for noncompliance with a planning enforcement notice.  When P applied for planning consent, P withdrew the summons but, after discovering a misrepresentation in D's application, sought to reinstate the prosecution.  The magistrates decided that D had already been acquitted.  Upon P's appeal, the Divisional Court held that the withdrawal of a summons did not equate to the offering of no evidence even if done after the entering of a not guilty plea.  There was 'no adjudication upon the merits of the charge in the original summons and the defendant has not been put in peril of conviction upon it.'  D did not have 'the benefit of the plea autrefois acquit'.

In DPP v Jarman [2013] EWHC 4391 (Admin), the magistrates dismissed the assault case against D for want of prosecution, pursuant to s 15 MCA.  When P commenced the same proceedings again, still within the statutory time limit, the District Judge permitted D to plead autrefois acquit.  Allowing P's appeal the Divisional Court said that D 'was in no way in peril' as 'the dismissal was not on the merits; there was no prosecutor and the magistrates had heard no evidence.'

In DPP v Bird [2015] EWHC 4077 (Admin), (2016) 180 JP 217, D was charged with criminal damage, an either way offence.  The magistrates dismissed the proceedings in reliance on s 127 MCA which applied to summary only offences.  When P recommenced the proceedings, the District Judge ruled that they had already been dismissed.  The Divisional Court held, per Beatson LJ that, even if s 127 had applied: '[A] dismissal in such circumstances does not amount to an acquittal for the purposes [of] autrefois acquit because the defendant would not be "in jeopardy" a second time.  Such jeopardy on a second occasion only arises after a lawful acquittal on the merits.' 

No conviction

For autrefois convict to apply, the second proceedings had to be for the same offence, including its date and place, as the conviction.  In R v Thomson Holidays Ltd [1974] 1 QB 592, [1974] 1 All ER 823, D was convicted on three counts of making a false statement in a holiday brochure.  D was subsequently tried for three identical offences, save only that the dates and places of offence were different.  D's plea of autrefois convict was rejected and D was again convicted.  The Court of Appeal held that the false statements in D's brochure were made whenever they were read.  It followed, per Lawton LJ, that 'the plea of autrefois convict could not be valid as there were as many offences as there were readers.'  In Wings Ltd v Ellis [1985] 1 AC 272, [1984] 3 All ER 577, the House of Lords went further.  Lord Hailsham LC said a false statement in a brochure could be made whenever it was communicated as well as when 'read by the ultimate recipient'.  He cautioned, however, that 'repeated attempts to convict a firm in respect of each separate communication of an individual copy of a brochure' could be met with 'reprobation from the courts'.

Abuse of process - the Connelly principle

Whereas Connelly defined the autrefois doctrine narrowly, it identified a wider principle under which it would be an abuse of process for a person to be punished twice for, although not the same offence, an offence arising out of substantially the same facts.  Lord Pearce said: 'A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal … the courts should apply to such cases an avowed judicial discretion.'  Lord Devlin said: '[A] second trial on the same or similar facts is not always necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case.  The judge must then, in all the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.' 

substantially the same facts

In R v Beedie [1997] EWCA Crim 714, D, the landlord of premises in which a woman died of carbon monoxide poisoning caused by a defective gas fire, admitted to, and was fined for, regulatory offences relating to his failure to ensure the maintenance and repair of the gas fires in those premises.  D was subsequently charged with the woman's manslaughter.  The trial judge refused to stay the proceedings.  The Court of Appeal, however, accepted that Connelly had not only established the principle that 'no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts' but had also approved a second principle wider than autrefois, namely, per Cockburn CJ in R v Elrington [1861] 1 B & S 688, ' ... 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.'  Whereas the narrow principle of autrefois only applied to the same offence in both fact and law, the manslaughter allegation against D should have been stayed as an abuse of process as it was 'based on substantially the same facts' as, and was a greater gravity offence than, the previous prosecutions.  

same incident

In R v Phipps [2005] EWCA Crim 33, D, whilst driving on the wrong side of the road, collided with another car.  He pleaded guilty and was fined for driving with excess alcohol.  When subsequently charged with dangerous driving, D's application for a stay was refused by the judge who held that the first offence related to the amount of alcohol in D's blood whereas the second related to his manner of driving.  The Court of Appeal, however, observed that Lord Pearce in Connelly had said: 'It would be an abuse if [the prosecutor] 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.'  The correct question, concluded the Court of Appeal, is 'whether the second set of proceedings arise out of the same or substantially the same facts as the first.'  That meant the prosecution was not 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.'  It was for the prosecution to decide when bringing the first proceeding, or at least by the conclusion of those proceedings, what charges it wished to bring based on the same incident.  In the instant case, the allegations in both prosecutions 'arose out of the same or substantially the same facts' and 'out of the same incident'.  As there were no special circumstances entitling P to bring the second proceedings, they should have been stayed as an abuse of process.

 In R v Wabelua [2020] EWCA Crim 783, having been convicted of conspiracy to supply heroin and crack cocaine, D was subsequently charged with trafficking a child for exploitation by sending him to supply crack cocaine.  The Court of Appeal distinguished both, Beedie and Phipps where, respectively, 'exactly the same conduct' and 'the same course of driving' had been relied on in both sets of proceedings.  The second proceedings in the instant case was 'a distinct form of criminality involving different conduct at a different time'.  It followed that they did not arise out of the same or substantially the same set of facts or from the same incident. 

knowledge of prosecutor when first proceedings concluded

In R v Dwyer [2012] EWCA Crim 10, D was charged with possession of heroin with intent to supply.  He pleaded guilty and was sentenced having confessed to his wider involvement in drug trafficking.  D was subsequently prosecuted for conspiracy to supply heroin over a period included in his confession, but based on evidence gathered after his conviction.  The Court of Appeal reaffirmed that the prosecution should not bring second proceedings arising out of the 'same or substantially the same facts' or 'same incident' as the first proceedings.  Pitchford LJ said the aforesaid words 'refer to the relevant state of affairs as they existed to the knowledge of the prosecutor at the date the proceedings were concluded.'  Rightly or wrongly, D was sentenced on the basis of his confession and it was almost the same basis on which the second proceedings were founded.  There being no special circumstances to justify the conspiracy indictment, the second proceedings should have been stayed as an abuse of process.

In R v Wangige [2020] EWCA Crim 1319, a car driven by D struck a pedestrian who died from the injuries he sustained.  The author of the 'collision report' calculated the speed of the car, based on a study of CCTV footage, to be 'around 30 mph' and did not attribute the collision to the defective condition of the car's tyres and lights.  D pleaded guilty in the Magistrates' Court to using a motor vehicle with equipment likely to cause danger or injury, using a car without a valid MOT, failing to stop after a road accident and failing to report the accident.  He was sentenced to 4 months' imprisonment; the maximum term with credit for his guilty pleas.  A forensic collision investigator subsequently reviewed the CCTV evidence and determined that the car had been travelling 'no slower than 42 mph' and opined that if the car had been travelling at 30 mph, the pedestrian would not have been struck.  Two years after being sentenced, D was charged with causing death by dangerous driving.  P, relying on Dwyer, argued that the relevant state of affairs known to P when the first proceedings were concluded was that P had not appreciated the true speed at which D had been driving.  The Court of Appeal, however, noted that the second charging decision, although arising from a new expert's report, was based on an evaluation of the same evidence as before.  'In this respect,' it said, 'the statement in Dwyer … as to what is known by the prosecutor by the time the proceedings were concluded is further to be modified so as to add an additional requirement by reference to what reasonably could have been known to the prosecutor by the time the proceedings were concluded.'

special circumstances

What constitutes 'special circumstances' enabling a second prosecution to proceed on the same facts as a previous one was not defined in Connelly.  Lord Devlin merely gave as examples a case where, had the charges in the second proceedings been included in the first, the judge would have ordered separate trials and a case where the defence accepted the prosecution's decision to prefer two or more indictments rather than to join all possible charges in a single indictment.  In Beedie it was held that the burden of showing that there were 'special circumstances' lay on the prosecution and that the public interest in a prosecution for manslaughter, and the concerns of the victim's family were not special circumstances.

R v Antoine [2014] EWCA Crim 1971, was a rare case in which it was held that there were special circumstances.  D failed to attend court for breach of a detention and training order and, when arrested, was found in possession of a gun.  Whilst in custody, D made an unsolicited comment that he was looking at 10 years as 'I got caught with a loaded handgun.'  D was erroneously only charged with possession of a firearm and ammunition without a certificate.  He pleaded guilty before the magistrates and was sentenced to 4 months' imprisonment.  When the charging error was discovered, D was charged with possessing a firearm without authority.  D appealed against his subsequent conviction arguing that the second proceedings should have been stayed.  The Court of Appeal confirmed that in such cases the burden was on the prosecution 'first to demonstrate special circumstances and then to demonstrate that to proceed would not be an abuse of process'.  It found that there were special circumstances requiring the prosecution to continue: 'This was not an escalation from minor charges to more serious charges, contrary to the general rule described in Elrington but a move from misconceived charges to correct charges.'  The facts were quite different from those in Beedie and Dwyer.  D had carried a loaded gun through the streets whilst subject to a detention and training order and knew he was taking the risk of a long custodial sentence.  Furthermore, the appropriate charges were brought shortly after the original sentencing and D's arrest.  Far from the second prosecution offending its sense of justice or propriety or undermining public confidence in the criminal justice system, 'a stay would have brought the criminal justice system into disrepute.'

In Wangige, P argued that as the initial charging decision was based on an error as to D's driving speed it amounted to 'special circumstances'.  The Court of Appeal, however, distinguished Antoine as 'demonstrably an exceptional case' where the original charge was contrary to what was intended and the defendant must have known that he was 'the undeserving beneficiary of a complete blunder'.  By contrast, the defendant in Wangige, would have reasonably believed that his original sentencing, where it was stated that he was not to be sentenced for causing the pedestrian's death, was the end of the matter.  Notably, that was two years before the second proceedings were initiated.  The Court of Appeal in Wangige said that whether fresh expert or other evidence designed to correct an error, oversight or omission in a first charging decision could constitute special circumstances would depend on the particular circumstances of the case and 'very close scrutiny indeed is called for before it may properly be adjudged that a second prosecution may fairly proceed'.

Continued in Part 2.

Terms and Conditions - Privacy Policy - © 2009 Victor Smith