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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Director of Public Prosecutions v Alexander [2010] EWHC 2266 (Admin) (27 July 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2266.html Cite as: [2011] WLR 653, [2010] EWHC 2266 (Admin), (2010) 174 JP 519, [2011] 1 WLR 653, [2010] ACD 98

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		27 July 2010

1. LORD JUSTICE STANLEY BURNTON: This is an appeal by way of case stated from a decision of the Justices sitting in the County of Kent acting in and for the Local Justice Area of North Kent, in respect of their decision at a Magistrates' Court sitting at Medway Magistrates' Court on 11 December 2009. The case concerned a Mr Christopher Alexander, whom the Crown Prosecution Service were seeking to prosecute for driving without due care and attention.
2. The facts giving rise to the case stated are concisely set out in the case. On 6 August 2009, Kent police laid an information against the respondent specifying the following offence. On 29 May 2009 at Strood, Rochester in Kent the respondent drove a mechanically propelled vehicle on a road, namely Watling Street, Strood, without due care and attention contrary to section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. A summons in respect of that offence had been duly issued. The case stated gives some information about various adjournments, and proceeds from paragraph 5 as follows:

"On 11th December 2009 we heard the abuse of process argument made on behalf of the respondent and found the following:

(a) On 29 May 2009 the respondent was said to have held a Tara Baker, after she had got into his car to speak to him, against her will in his car by driving his car with her in it for about two miles and refusing to stop and let her out.

(b) During the journey the respondent's car was pursued by the car of the boyfriend of Tara Baker, a Ben Collins.

(c) During that pursuit there was a collision between the car driven by the respondent and that being driven by Mr Collins.

(d) the appellant allege[s] that the collision was caused by the respondent driving without due care and attention.

(e) On 11th July 2009 the respondent was given a formal caution for false imprisonment in relation to his actions in driving his motor vehicle with Tara Baker in it and refusing to stop and let her out.

(f) On 6 August 2009 an information was laid against the respondent alleging that he drove his vehicle without due care and attention."

3. On the basis of those facts the magistrates addressed the issue which was raised on behalf of the defendant (now the respondent) that he was entitled to rely on the defence of autrefois convict. In addition, the proceedings against him constituted an abuse of the process because the prosecution had administered and he had accepted and given and received a caution in respect of the offence of false imprisonment. The offences of false imprisonment and the driving without due care and attention during the journey in which he had been pursued by the car driven by Ben Collins related to the same incident. It was incumbent on the prosecution to decide how to proceed in respect of all charges arising out of that incident. They having decided to proceed by way of caution in respect of false imprisonment, it was unfair and an abuse of the process for him subsequently to be prosecuted for the offence of driving without due care and attention. That was the submission made on behalf of Mr Alexander.
4. The submission made on behalf of the CPS was effectively that the offences in question, namely driving without due care and attention and false imprisonment, were of a totally different kind, that although broadly they may be said to have arisen out of the same facts or series of facts, or the same incident, the facts constituting the offences were of totally different kinds, and there was no unfairness in proceeding with the driving offence even though the offence of false imprisonment had been dealt with by way of caution, and therefore the abuse of process submission should be rejected. In addition, the defence of autrefois convict was inapplicable.
5. The magistrates accepted the submissions made on behalf of Mr Alexander. They held that he could rely on the defence of autrefois convict, and in addition they held that it was an abuse of process to proceed with the prosecution, but they stated the following questions for the opinion of this court:

"(1) Were we wrong in law in finding that the principle of autrefois convict applied to an offence of driving without due care and attention on the basis that it arose from the same set of circumstances as an offence of false imprisonment?

"(2) Were we wrong in law in finding that the principle of autrefois convict applied on the basis that the defendant had received a police caution for the offence of false imprisonment?

(3) Were we wrong in law to find that the prosecution for driving without due care and attention was inappropriate and amounted to an abuse of process sufficient to dismiss the information?"

6. Before us it is common ground that the defence of autrefois convict, or indeed autrefois acquit, has no application where what has occurred is a caution. A caution is not a conviction for the purposes of those defences, notwithstanding that a caution will only be administered if the accused person admits his guilt. The principles of autrefois convict and autrefois acquit are applicable only where there has been a finding by a court of guilt or innocence. They have no application to an extra-judicial procedure, such as the administration of a simple caution.
7. The issue that remains, therefore, is whether this prosecution for driving without due care and attention was and remains an abuse of the process of the court. If it was and is, the magistrates were right to decide as they did. If it was not, then the decision must be quashed and the prosecution remitted to them for them to find whether or not Mr Alexander was in fact guilty of driving without due care and attention.
8. In my judgment, the doctrine of abuse of process is to be narrowly confined. It is only in very special circumstances that a defendant who would otherwise receive a fair trial is entitled to avoid his trial by showing that his prosecution is indeed an abuse of the process of the court.
9. As I have already said, it is clear and common ground that a caution is not a conviction for the purposes of the defence of autrefois acquit, or for that matter autrefois acquit. Where, however, criminal conduct has been the subject of an agreed caution, in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court. Information or evidence obtained subsequent to caution, such as details of injury to a victim significantly exceeding what had previously been known would generally constitute a good reason: Gore and Maher [2009] EWCA Crim 1424.
10. In the present case, however, there were important differences between the offence that was the subject of the caution and the offence subsequently prosecuted. The conduct of the defendant was different: in the one case, detention of Tara Baker; in the latter, the manner of his driving. Thus the offences were totally different. So were the facts necessary to establish guilt. In the case of the detention of Tara Baker, all that was necessary was that she had been detained during the journey against her will. In the case of the driving without due care and attention, while the presence of Tara Baker against her will in the car might be an explanation for careless driving, it was not a necessary part of the offence. What was necessary to prove was that the defendant had driven without due care and attention.
11. The modes of trial prescribed are different: in the case of false imprisonment, on indictment; in the case of the offence prosecuted, that is to say driving without due care and attention, summary trial of an offence that cannot be tried by itself on indictment. It may be that if section 51(1) of the Crime and Disorder Act 1998 is still in force, the two offences could have been tried together in the Crown Court, but the fact remains that they are very different offences, and the limitations in sub-section (11) on the trial of offences triable summarily only and triable on indictment only together themselves indicate that, in certain circumstances, there will have to be separate trials before different courts of offences arising out of the same broad incident or series of incidents.
12. Moreover, there were different victims in these cases. In the offence subject to the caution, the victim and the only victim was Tara Baker; in the case of the driving offence, in addition to Tara Baker, Ben Collins and members of the public liable to be endangered by the respondent's driving, if indeed it was careless. The sanctions applicable on conviction differ in important respects. The imposition of points on a driving licence and disqualification are not available on conviction for false imprisonment. Careless driving is punishable only by a fine. A conviction for false imprisonment may lead to imprisonment.
13. These differences lead me to conclude that a plea of autrefois convict could not have been maintained if there had been a conviction for false imprisonment: see Connelly v Director of Public Prosecutions [1965] AC 1254. If so, it seems to me a fortiori the defence of abuse of process in a case such as this cannot be maintained.
14. It is not suggested an express promise was made by the police that there would be no prosecution arising out of the respondent's driving, nor is it suggested that he enquired as to the possibility of his being prosecuted for a driving offence. In my judgment, there was no implied assurance given by the police on the facts of this case.
15. This case differs in important respects from that considered in James Michael Phipps [2005] EWCA Crim 33, where both offences in question were driving offences: see paragraph 8 of the judgment of Clarke LJ. I would refer also to paragraph 15 of the judgment of the Lord Chief Justice in Gore and Maher, in which he emphasised the significance of the subject of the caution and an intended prosecution being for different offences.
16. In my judgment, therefore, the magistrates erred as a matter of law in upholding the plea of abuse of process. I would answer all the questions posed by them in the case stated in the affirmative.
17. I add that the caution in this case would seem to have been administered without reference to the Crown Prosecution Service, contrary to paragraph 12 of Home Office Circular 016/2008. That matter is not referred to in the case stated and it is not before us and we have heard no argument about it. Whether that irregularity of itself would have affected a defence of abuse of process (cf. Nicholas v Chester Magistrates' Court [2009] EWHC 1504 (Admin)) is an issue which we can leave to be determined on another occasion if and when it becomes necessary to decide it.
18. However, for the reasons I have given I would allow this appeal.
19. In my judgment, the result of this appeal should be that the matter should be remitted to the magistrates for them to continue to hear the prosecution.
20. MR JUSTICE TREACY: I agree with my Lord, Stanley Burnton LJ. Although the answers to the first two questions posed in the case stated are not controversial before this court, it seems to me appropriate to answer those questions briefly before coming on to the third question, which is that which has exercised this court.
21. Question (1): were the justices wrong to find that autrefois convict applies to a charge of careless driving on the basis that it arose from the same set of circumstances as the offence of false imprisonment? In my judgment, the answer to that question is "yes". The doctrine of autrefois convict or acquit was extensively considered by the House of Lords in Connelly v the DPP [1964] Cr App R 183. Lord Morris distilled nine governing principles, which are set out at pages 211 and 212 of that judgment. The facts of this case show that (a) there has been no previous conviction or acquittal by a competent court, (b) the facts necessary to prove false imprisonment are distinct from those necessary to prove careless driving, (c) there is no common ground between the ingredients of two offences, and (d) the fact that there may be witnesses common to both offences describing the incident as a whole is not a bar.
22. In my judgment, the justices fell into error in their treatment of these two matters, ie the false imprisonment and the careless driving, as arising from the same set of circumstances without proper analysis of the principles enunciated by Lord Morris, which would inevitably have led them to a different conclusion.
23. Question (2): were the justices wrong in law in finding that autrefois convict applied on the basis that the respondent had been cautioned for false imprisonment? I answer this question "yes". As Lord Morris's governing principles demonstrate, the doctrine requires a prior appearance before a competent court. A caution by a police officer is very different. It is, as Home Office Circular 016/2008 states, "a non-statutory disposal for adult offenders". The Circular expressly states at paragraph 34 that "a simple caution is not a form of sentence (which only a court can impose), nor is it a criminal conviction". This has to be explained to the person being cautioned, together with the information that a caution amounts to an admission of guilt and forms part of the offender's criminal record. My answer to question (2) is consistent with observations of Sedley LJ at paragraph 8 in Jones v Whalley [2005] EWHC (Admin) 931.
24. Question (3): were the justices wrong to find that a prosecution for careless driving was an abuse of process sufficient to dismiss the information? This is the key question posed. The question is whether it would be fair for the respondent to be tried for careless driving. It is clear from Connelly that the approach to autrefois convict or acquit arguments must be one of giving the doctrine limited scope. A similarly restrictive approach is to be taken with abuse applications: see for example R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42 per Lord Griffiths at page 63H, and R v Oxford Justices ex parte Smith 75 Cr App R 200 per Lord Lane at page 204.
25. In my judgment, there was no unfairness or manipulation of court procedures in issuing proceedings for careless driving after cautioning for false imprisonment.
26. I identify the following matters. (a) There was no suggestion that, in administering the caution, any promise was made to the respondent that he would not be prosecuted for any other offences: cf. R v Croydon Justices ex parte Dean [1993] 98 Cr App R 76. Indeed, the cautioning process explicitly sets out the consequences of accepting a caution as set out earlier in this judgment.
27. (b) The legal ingredients necessary to prove the two offences are totally different. There is unlikely to be any significant or material factual overlap.
28. (c) The charge of careless driving does not focus on an individual victim, unlike false imprisonment. It looks to the wider public and has available endorsement and disqualification penalties, which themselves may justify separate proceedings: see R v Arnold [2008] 2 Cr App R 37 at paragraph 34.
29. (d) There is no evidence that the respondent has acted to his detriment as a result of being cautioned, or that he would be materially disadvantaged vis-a-vis the careless driving charge. The summons for careless driving was issued in good time, and the notice of intended prosecution procedure under section 1 of the Road Traffic Offenders Act 1988 requiring notice within 14 days of the offence is deemed to have been complied with by virtue of section 1(3).
30. (e) On a trial before the justices for careless driving, the court would retain the ability to exclude evidence of the caution if it considered that it was irrelevant to the issues before the court, or if it concluded that it would be unfair to admit the evidence pursuant to section 78 of PACE.
31. (f) I do not consider that the position in this case is analogous to that in Phipps [2008] EWCA Crim 33 or ex parte Farley [1990] RTR 228, where successive prosecutions were brought on closely related subject matter.
32. (g) It is to be noted that the case stated does not appear to consider the principles of abuse of process in any detail. Paragraph 6 reads:

"We are of the opinion that:

- The police caution for false imprisonment and the summons for driving without due care and attention arose from the same circumstances.

- The respondent should not be punished twice for an offence arising out of the same or substantially the same facts.

- That to do so did offend against the established principles of autrefois convict and of double jeopardy.

Accordingly we dismissed the information on the basis of autrefois convict and double jeopardy."

33. The justices appear to have equated abuse of process with autrefois convict by describing the prosecution as "inappropriate" in the third question framed, and found grounds for dismissing the information on that basis. None of the reasons given in paragraph 6 of the case for the justices' decision gives a sufficient basis for a finding of an abuse, for the reasons set out earlier in this judgment.
34. In any event, I do not consider that any of the circumstances that could enable the court to intervene to stay or stop the criminal process was demonstrated in this case.
35. Accordingly, I hold that the justices were wrong to dismiss the information, and answer the third question posed in the affirmative. I would allow this appeal and require the justices to proceed to try the information.
36. MR JUSTICE NICOL: I agree with the decisions that my Lords have given in relation to those answers to the first two questions posed by the justices. This was not a case where the principle of autrefois convict applied. However, I have the misfortune to disagree with them in relation to the answers which they give to the third question in connection with abuse of process.
37. In my judgment, the critical fact here is that no fresh evidence or information was available to the Crown Prosecution Service after the administering of the caution. The facts necessary for the prosecution of an offence of careless driving were known to the police and the CPS at the time when the caution was administered.
38. It is well-established that the principles on which the court can preclude a prosecution from taking place because of abuse of process are wider than autrefois acquit, or indeed autrefois acquit. That was established by the House of Lords in Connelly and has been developed subsequently. Both my Lords have referred to the decision of the Court of Appeal (Criminal Division) in Phipps. In that case, Clarke LJ at paragraph 21 analysed the circumstances where, at least presumptively, there would be an abuse, in the sense of being unfair, to try a defendant on a second prosecution. He said this:

"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."

39. It is of course the case, as my Lords have both said, that the ingredients of the offence of kidnapping and of the offence of careless driving are different. The evidence necessary to prove the two offences would be different. But as Clarke LJ went on to say at paragraph 27 of the Phipps decision:

"... 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."

40. The two offences in the Phipps case were perhaps more closely related. The first had been an offence of driving with excess alcohol. The second had been an offence of dangerous driving. But, in my judgment, the principle identified by Clarke LJ is not dependent on there being such a close relationship with the offences. What matters, as he said in the passage that I quoted at paragraph 21, is that the two offences arose out of the same incident. In the present case, in my judgment, there was the same incident which gave rise to the matters that led to the caution for kidnapping and the subsequent charge of careless driving. It is true that careless driving is a summary offence and kidnapping is an indictable only offence. As my Lord, Stanley Burnton LJ, has mentioned, section 51 of the Crime and Disorder Act 2003 allows, in circumstances at least such as these, for those two offences to be tried at the same time in the Crown Court.
41. It is also not stated in the case that has been presented to us by the magistrates that anything was said to the respondent as to whether he would be prosecuted for some offence other than kidnapping. There has been no finding that the respondent would suffer any particular prejudice if the second set of proceedings went ahead. But prejudice in that sense does not feature as one of the necessary ingredients in the principles of abuse of process that were identified in the Phipps case. It is a jurisdiction essentially founded on the unfairness of trying a defendant in a second set of proceedings.
42. The real issue, it seems to me, in this case is whether the principles enunciated by the Court of Appeal in Phipps should be applied where what happened on the first occasion was not a prosecution but a caution.
43. Miss Wilkes, on behalf of the respondent, has referred to Jones v Whalley, where the House of Lords, at least to some extent, recognised that a similar principle could apply. In that case, there was to be a prosecution for the very same offence, and that is of course a much stronger situation. But, in my judgment, the court ought to take the cautious extra step of applying the same principles even though what has happened on the first occasion is a non-judicial disposal of the matter. The Home Office Circular 016/2008 deals with or gives advice to police forces on the simple cautioning of adult offenders. At paragraph 8 it is said that "the aims of the simple caution are", and they include "divert offenders where appropriate from appearing in the criminal courts".
44. In my judgment, just as it is appropriate, according to Phipps, for the prosecution to decide at the beginning of the first set of proceedings the totality of the charges which they are to bring, so if a caution is being considered it is appropriate for the prosecution to consider the totality of the offending disclosed by the same incident in order to decide whether diverting that particular offender from appearing in the criminal courts is appropriate, or whether a caution for one of a number of offences disclosed by the single incident should be combined with prosecution for some other offence disclosed by the same incident.
45. I recognise, as my Lord, Stanley Burnton LJ, just said, that in the case of Gore and Maher at paragraph 15, the Lord Chief Justice distinguished the Jones v Whalley case on the basis that the subject of the caution in the intended prosecution were not for the same offence. But that was just one of a number of distinguishing features between Gore and Maher and Jones v Whalley. An important other feature was that in that case further evidence did come to light after the caution or the non-prosecution disposal had been administered.
46. For the reasons which I have given, I would answer the third question which the justices posed in the negative. It is true that they did not in terms go through the principles of abuse of process, as my Lord, Coleman J(?), has indicated. However, in the absence of there being any submission on the part of the CPS that new evidence or new information had come to light post the caution, I would not regard that omission as significant.
47. For my part, I would have answered the first two questions in the affirmative, but nonetheless dismissed the appeal.
48. LORD JUSTICE STANLEY BURNTON: The appeal is allowed. The decision of the magistrates is quashed, and the case is remitted to them for trial. Unless there are any other applications?
49. MS PHILLIPS: No, my Lord, I do not have any other applications.