England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Tuesday 11th March 1997

B E F O R E :

THE VICE PRESIDENT

(LORD JUSTICE ROSE)

MR JUSTICE DYSON

and

MR JUSTICE TIMOTHY WALKER

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R E G I N A

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THOMAS SIM BEEDIE

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

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MR R SMITH QC (13/14.2.97) & MR GATESHILL appeared on behalf of the Appellant

MR K KEEN QC (13/14.2.97) & MR TREMBERG appeared on behalf of the Crown

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JUDGMENT

(As Approved by the Court )

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Crown Copyright

Tuesday 11th March 1997

JUDGMENT

THE VICE PRESIDENT: At Sheffield Crown Court, on 19th April 1996, the appellant pleaded guilty to manslaughter, and on 22nd April was sentenced to 18 months' imprisonment suspended for two years by Clarke J. He appeals against conviction by virtue of a certificate of the trial judge.

On 14th June 1994 the appellant had pleaded guilty in the Magistrates Court to an offence contrary to section 33 of the Health and Safety at Work Act 1974, arising from a breach of duty imposed by section 3(2) of that Act. The question raised by this appeal is whether the judge was right in rejecting the appellant's plea of autrefois convict and in refusing to stay the proceedings for manslaughter.

The relevant facts are that on 29th November 1993 Tracy Murphy, a young woman of 19, died of carbon monoxide poisoning caused by the use of a defective gas fire in her bedsit at 56 Pearson Park, Kingston Upon Hull. The appellant was the landlord, and had a duty under the Health and Safety at Work Act 1974 to ensure that the appliance was maintained and repaired. The fire had been installed prior to 1983 when the appellant bought the house. The chimney was blocked with debris which had accumulated over the years. Routine servicing of the fire and flue would have revealed the fatal defects.

Miss Murphy's body was discovered on 30th November 1993. Representatives of the police and British Gas attended. On 1st December representatives of British Gas, the Health and Safety Executive and Hull City Council attended the house, together with the appellant. On 3rd December the appellant was interviewed under caution by the Council's environmental health officer in the presence of representatives of the Health and Safety Executive. During the first week of December, PC Freer of Humberside Police was instructed to carry out an investigation as Coroner's Officer, and did so. In December 1993 an inquest into Miss Murphy's death was adjourned. On 23rd March 1994 the appellant was interviewed for a second time by the local authority.

The Health and Safety Executive prosecuted the appellant under section 33 of the 1974 Act in that, being a self-employed person, he did not conduct his undertaking as a landlord so as to ensure, so far as was reasonably practicable, Tracy Murphy's health and safety, by maintaining the fire and flue in good repair and proper working order. On 14th June the appellant pleaded guilty before the Magistrates. He was fined £1,500 and ordered to pay £418 costs. Proceedings were also taken by the City Council against the appellant as manager of the premises under section 369 of the Housing Act 1985, and regulations 7 and 8 of the Housing (Management of Houses in Multiple Housing Occupation) Regulations 1990, in relation to the state of a number of other gas installations in the same premises. The allegation was in each case that the appellant failed to ensure that the installations were maintained in repair and in proper working order. No evidence was offered in relation to Miss Murphy's bedsit because the allegation was the same as that in relation to the prosecution by the Health and Safety Executive. On 6th July 1994 the appellant pleaded guilty before the Justices to all charges and was granted a conditional discharge and ordered to pay £1,000 costs. Clarke J concluded that, at this stage, following the two separate prosecutions before the Justices, the defendant reasonably thought that it was the end of the matter in relation to any prosecution.

The inquest, having previously been adjourned, was resumed on 25th August 1994. The Coroner, following a discussion with the appellant's solicitor, Mr Forde, required the appellant to give evidence, otherwise he would be in contempt. The Coroner's view was that, as the appellant had already been prosecuted, there was no prejudice to him because there was no realistic prospect of a prosecution for manslaughter in the event of a verdict of unlawful killing at the inquest. Clarke J concluded that this was the only inference which could be drawn from the Coroner's failure to give the appellant a warning under Rule 22 of the Coroners Rules that he was not obliged to answer any question tending to incriminate him, and that he could refuse to answer such a question. That conclusion, as the judge found, was also consistent with the evidence of Mr Forde about his discussion with the Coroner, which the judge accepted. The cross-examination of the appellant on behalf of Miss Murphy's family was designed to elicit answers which would support a case both of breach of duty and of unlawful killing. The Coroner summed up the case to the jury impeccably. They returned a verdict of unlawful killing.

On 6th September 1994 the police, for the first time, notified the Crown Prosecution Service about the case. They obtained a transcript of the inquest proceedings. On 25th March 1995 the appellant attended for interview by the police. He declined to comment. He was charged with manslaughter.

At the trial Mr Robert Smith QC, then as now appearing for the defendant, applied to stay the indictment relying on Connelly v. DPP [1964] AC 1254. The judge rejected that submission. Thereupon the appellant pleaded guilty to manslaughter and was sentenced as we indicated at the outset.

The first and second grounds of appeal assert that the judge erred in law in rejecting the plea of autrefois convict, and the judge's analysis of the speeches in Connelly v. DPP led him to conclude, wrongly, that that plea could only be successful if the legal characteristics of both offences were the same, whereas it was sufficient for the plea to succeed for the appellant to show that the evidence necessary to support the indictment for manslaughter, or the facts constituting manslaughter, would have been sufficient to procure a conviction under the Health and Safety at Work Act. Mr Smith's first submission to this Court, however, was unenthusiastic in relation to these grounds. His second submission in support of ground 3 was advanced with much more vigour: the judge had a discretion to stay the proceedings because to proceed with them would offend the general rule that no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts, and to do so would offend the established principle that a defendant is not to be tried again on the same facts for more serious offences on an ascending scale of gravity. Mr Smith's third submission was that the judge wrongly exercised his discretion in failing to identify special circumstances justifying further proceedings, in carrying out an inappropriate balancing exercise, in seeking to distinguish Connelly on the ground that the relevant indictment rule (now Rule 9 of the Indictment Rules 1971) applied in Connelly but not to the instant proceedings, and in concluding that the trial process itself was capable of curing any risk of oppression or prejudice.

In relation to his first submission, Mr Smith was inclined to concede, on reflection, that Clarke's J analysis of the speeches in Connelly v. DPP was correct, namely, that the majority of the House of Lords identified a narrow principle of autrefois, applicable only where the same offence is alleged in the second indictment. In our judgment this concession was rightly made. At 1339 Lord Devlin said, "For the doctrine to apply it must be the same offence both in fact and in law", and he went on at 1340, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at 1368, agreed with the opinion of Lord Devlin. Lord Reid, at 1295, said:

".....many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope... I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial."

It follows that we are unable to accept the view of the Editors of Archbold expressed in earlier editions, and in paragraph 4-117 of the 1997 Edition, that Lord Morris's speech and, in particular, his third and fourth principles expressed at page 1305 (that the principle of autrefois applies to offences which are the same, or substantially the same, and an appropriate test is whether the evidence to support the second indictment or the facts constituting the second offence would have been sufficient to procure a conviction on the first indictment) represents the ratio of the House's decision. Clarke's J analysis was correct. The majority of their lordships in Connelly defined autrefois in the narrow way which we have described, that is when the second indictment charges the same offence as the first and said that judicial discretion should be exercised in other appropriate cases. Lord Morris and Lord Hodson took the view that no such discretion existed.

We turn to Mr Smith's second submission in relation to the nature of a judge's discretion. From the speeches in Connelly he identified two principles wider than the narrow principle of autrefois. First, that no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts. He relied on the speech of Lord Devlin at 1347 where he referred to the inherent jurisdiction to declare that the prosecution must "as a general rule join in the same indictment" charges founded on the same facts by staying a second indictment if satisfied that its subject matter ought to have been included in the first. A similar passage appears in his speech at 1359-60 where he adds this:

"But 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."

At 1364 Lord Pearce referred to the narrow view of autrefois as not comprehending:

".....the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction. 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....."

At 1296 Lord Reid said:

".....the general rule must be that the prosecutor should combine in one indictment all the charges he intends to prefer. ...there must always be a residual discretion to prevent anything which savours of abuse of process."

Mr Smith also referred to R. v. Riebold [1967] 1 WLR 674, where Barry J, having analysed the speeches in Connelly, concluded that he must apply the rules laid down by Lord Devlin and approved by Lord Pearce and Lord Reid in relation to discretion. Having cited the passage in Lord Devlin's speech at 1359-60, to which reference has already been made, Barry J, who approached the application before him as one by the prosecution for leave to proceed rather than one by the defence for a stay, said, at 677F:

"I feel that I am bound to apply this general rule to the facts of the present case and to ask myself whether there are here any exceptional circumstances which would make it not oppressive to grant the prosecution leave to proceed....."

The second wider principle identified by Mr Smith was that there should be no sequential trials for offences on an ascending scale of gravity. He relied on the approval of R. v. Elrington [1861] 1 B & S 688, per Cockburn CJ at 696 in Connelly. Cockburn CJ said:

".....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."

This was approved by Lord Hodson at 1332, Lord Devlin at 1357-8 and Lord Pearce at 1367.

For the Crown, Mr Keen QC accepted before us that a judge has the discretion identified by Lord Devlin and exercised by Barry J in Riebold. Further, he did not seek to suggest that the Elrington principle is other than good law.

It will be apparent that the principal focus of the appeal before this Court has been on the way in which Clarke J exercised the discretion which it is common ground he had.

Mr Smith's first attack was based on the judge's failure, as he submitted, to identify any circumstances sufficiently special to justify departure from the general rule enunciated by Lord Devlin. Had he followed the example of Barry J, he would have been bound to conclude that there were no special circumstances because there were no new facts. At page 36G of the transcript of his ruling Clarke J said this:

".....proceedings should be stayed unless the prosecution persuades the Court that there are good reasons for not doing so. Mr Keen submits in the exercise of my discretion I should take account of all the circumstances of the case. As already stated I accept that submission. It is consistent with the approach of Lord Devlin.

In my judgment I should take account of all the relevant circumstances. Those include not only the interests of the defendant, important though they are, but also the wider public interest. Although, as already stated, all relevant charges should have been brought and determined at the same time, there was here more than one prosecuting authority because both the CPS and the Health and Safety Executive are by statute autonomous prosecuting authorities...

Although some blame attaches to the police none attaches to the CPS and none attaches to the Health and Safety Executive because they could not have prosecuted for manslaughter. On the other hand, I entirely accept that the fact that there was no prosecution for manslaughter was in no way caused by anything done or not done by the defendant...

The question is whether there would be manifest unfairness or prejudice to the defendant if this prosecution is allowed to proceed."

At 39D he went on:

".....it appears to me the exercise of a discretion of this kind is essentially one of balance. In principle the public interest requires, if a defendant is guilty of manslaughter because of his gross negligence, that fact should be reflected in the verdict of a jury or by a plea of guilty in the context of criminal proceedings."

At 40A he went on:

".....it appears to me that it is in the public interest that the matter should be tried and, if necessary, determined by a jury, in the context of an indictment for manslaughter. It is of the utmost importance that a tragedy like this should never happen again, and that landlords should appreciate the risk they run if they are guilty of gross negligence. I also take account of the legitimate concerns of the family of the deceased, although that is only one factor in the context of a decision where the general public interest lies.

...I am unable to accept that [to impose a further penalty] that would be unfair on the facts of this case because no Court has considered whether the defendant was guilty of gross negligence causing death. Moreover, no Court has considered the appropriate penalty in respect of such gross negligence if it is established."

At 41E he concluded:

".....it would not in all the circumstances of this case, be manifestly unfair or prejudicial to the defendant if this indictment is allowed to continue,....."

Mr Smith submitted that the reasons identified by the judge for not granting a stay, namely public interest in a prosecution for manslaughter and concern on the part of the family of the deceased, may well have been good reasons (as the judge himself said) but they were not "special circumstances". Special circumstances, submitted Mr Smith, have to be special to the case under consideration, that is something in the facts or other relevant matter taking the case outside the general rule. Whenever any death has been caused by gross negligence there is a public interest in a prosecution for manslaughter and understandable concern on the part of the deceased's family. In any event, in the light of the two earlier prosecutions before the Justices, the wider principle of Elrington supports the granting of a stay: in R. v. Forest of Dean Justices ex parte Farley [1990] RTR 228, at 239, Neill LJ referred to the "almost invariable rule 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". The prosecution for manslaughter gave rise to a re-hearing of the same, or substantially the same, charge on the same facts aggravated by gross negligence and death. Death had been opened as part of both the earlier prosecutions, and it was oppressive for the defendant to face a second trial for a more aggravated form of the same offence (see R. v. Moxon-Tritsch [1988] CrimLR 46). Rule 26 (1) of the Coroners Rules imposes a duty on the police to alert the Coroner if there is a possible prosecution for manslaughter. The City Council's press release in 1994 showed that the prosecution of the appellant for the statutory offences was regarded as high profile and was intended to "have a deterrent effect on the city's landlords to prevent any further tragic accidents involving gas appliances in private rented houses". The Health and Safety Executive were well aware of the risk of double jeopardy, and a conscious decision was made about the nature of the charges to be pursued in the light of this principle. The only purpose to be achieved by a manslaughter prosecution was the imposition of a further penalty and the heaping of condemnation on the defendant. The first indication of a charge of manslaughter was given six months after the CPS had obtained a transcript of the inquest, at which the appellant had answered questions in the belief that he was not to be further prosecuted.

Mr Smith submitted that the judge, having failed to identify special circumstances, should not have sought to carry out the balancing exercise to which he referred. The position was quite different from that where an application is made for a stay because the defendant shows that he cannot have a fair trial (see Attorney-General's Reference (No 1. of 1990) (1992) 95 Cr.App.R. 296).

Accordingly, the judge's approach being flawed in these two respects, Mr Smith submitted that this Court should substitute its own exercise of discretion and, there being no special circumstances, the general rule in favour of a stay should prevail.

Mr Smith further submitted that the judge fell into error in ruling that the present case was distinguishable from Connelly on the basis that Rule 3 (now 9) of the Indictment Rules applied in that case, but not in the present, because the Health and Safety Executive is an autonomous prosecuting body which could not have brought a charge of manslaughter, and the CPS could not have brought a charge under the 1974 Health and Safety at Work Act. But this conclusion was inconsistent with the judge's earlier finding that, if there had been proper liaison between police, CPS and the Health and Safety Executive, the CPS would probably at the outset have reached a conclusion that a prosecution for manslaughter was appropriate. As the Health and Safety at Work Act offences are triable either way, the appellant could have been committed for trial in relation to both matters and both joined in accordance with the Indictment Rules, thereby giving effect to Lord Devlin's words at 1353:

".....it is absolutely necessary that issues of fact that are substantially the same should, whenever practicable, be tried by the same tribunal and at the same time."

Mr Smith's final submission was that the judge was wrong to conclude that the trial process was, in itself, capable of curing any risk of oppression or prejudice if evidence of the appellant's summary convictions and his admissions in evidence at the inquest were excluded from the jury's consideration under section 78 of the Police and Criminal Evidence Act 1984. This was to ignore the advantage to the prosecution of having a transcript of the appellant's evidence at the inquest on which cross-examination of him could be based. 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 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.

Mr Keen submitted that the judge's reference to "good reasons" should be read not in isolation, but in the context of the rest of his ruling, wherein he carefully considered Connelly and recognised the relevant principles. He quoted extensively from the speech of Lord Devlin, including his reference to "special circumstances". The judge probably used the expression "good reasons" because he had in mind the reasoning behind Lord Devlin's general rule, as set out at 1347 in his speech, namely, that the discretion was to prevent unfairness to the accused and injustice arising if the prosecutor spread his case over several indictments and the need for a controlling power. If there is no unfairness or prejudice, this can be a special circumstance constituting an exception to the general rule. Mr Keen distinguished R. v. Forest of Dean Justices because the burden there was placed on the defendant by reason of the earlier prosecution, and R. v. Riebold because in that case there was an attempt by the prosecution, in seeking to pursue substantive counts when a conviction for conspiracy had been quashed, to re-try an issue on which they had already lost. Mr Keen did not seek to say that the fact that the Health and Safety Executive are an autonomous prosecuting authority gave rise to any special circumstance; for he accepted that manslaughter and the 1974 Act offences could have been joined in the same indictment. The evidence given by the appellant at the inquest added nothing to the admissions made in interview by the appellant. Had the prosecution for manslaughter been brought at the same time the appellant could have been convicted of that offence and the statutory offences, which were not merely lesser alternatives. He did, however, concede that in reality a judge would probably direct a jury to consider the manslaughter first before turning to the statutory offences and would not take a verdict on the statutory offences if there were a verdict of guilty of manslaughter. The judge was entitled to look at the public interest, and the absence of any prejudice or unfairness, in deciding whether it was just and convenient for the matter to be tried. He conceded, however, that the judge was wrong to approach the matter as a balancing exercise: it is for the prosecution to discharge the burden. He accepted that he may have unwittingly misled the judge by arguing that the burden was on the defendant and that the judge should consider all the circumstances. This error was contributed to because, in Archbold, the authorities were considered under the general heading of abuse of process.

In our judgment, Mr Smith's submissions in relation to the judge's exercise of discretion are all well-founded. Although the judge carefully and, in our judgment, accurately analysed the effect of the speeches in Connelly (which, if we may say so, is no mean feat), in applying those principles to the exercise of his discretion he fell into error. First, he failed to consider whether there were special circumstances, and in our judgment there were none. The public interest in a prosecution for manslaughter, and the understandable concerns of the victim's family, were, no doubt, good reasons for allowing the prosecution to proceed. They did not, however, give rise to special circumstances. At 1360 in Connelly Lord Devlin, without attempting a comprehensive definition, gave, as examples of a special circumstance, where a judge would have ordered separate trials if the offences in the second indictment had been included in the first and where the prosecution, instead of joining all possible charges in one indictment, preferred two or more indictments, and the defence accepted this without complaint. Nothing remotely akin to those situations arose in the present case, in which we can see no special circumstances of any kind. Secondly, he carried out a balancing exercise when this was inappropriate; although it has to be said that prosecuting counsel's submissions appear to have misled him in this respect. Thirdly, he sought to distinguish Connelly on the basis of the Indictment Rules, when no such distinction is to be found. Fourthly, he took into account, inappropriately, the question of whether there could be a fair trial. Again it appears that he was not greatly assisted by the submissions of counsel for the Crown.

The judge having, as it seems to us, exercised his discretion on a flawed basis, it is open to this Court to exercise its discretion. In our judgment there being, as we have indicated, no special circumstances in the present case, it is one in which the general rule should have prevailed. A stay should have been ordered because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions, and gave rise to a prosecution for an offence of greater gravity, no new facts having occurred, in breach of the Elrington principle. Although we differ from the judge as to the way in which he exercised his discretion, it should be noted that, as he himself recognised in granting a certificate to appeal, he faced a very unusual and difficult task. He had to make a decision in the light of intense public interest in the locality, guidance from the House of Lords which has been widely misunderstood by practitioners for over 30 years, and submissions from Counsel which had not been honed before him to the precision which they achieved before this Court.

We add this. We can see no reason why, prior to institution of the summary proceedings, the CPS should not have been alerted by the police, the Health and Safety Executive, or the Local Authority to the enquiry which was being undertaken into the circumstances leading to the death of this unfortunate young woman. Had this been done, it should have been possible for a sensible joint decision to be reached as to what charges could, and should, have been properly brought against the appellant, and no doubt manslaughter would have been among them. We understand that liaison between the separate prosecuting authorities in the North East has now improved so that the history of the present prosecution should not be repeated in other cases. We venture to express the hope and expectation that a like degree of liaison already exists in other parts of the country.

For the reasons given, the appeal is allowed and the appellant's conviction, which depended on his plea following the judge's ruling, quashed.

MR GATESHILL: My Lord, there are two consequential orders sought by the appellant. He has paid legal aid contributions in a total sum of £6,430. I would seek an order that those contributions be returned to him. Secondly, I would seek a defendant's costs order, the sum claimed is the relatively modest one of £525. I do not know if your Lordship can deal with that today.

LORD JUSTICE ROSE: I can deal with it, but not as at presently constituted. I shall need two other judges to deal with it, so I am going to rise for a moment or two to reconstitute, and then we will be in a position to deal with it.

Court rose for a short time to reconstitute

Royal Courts of Justice

The Strand

London WC2

Tuesday 11th March 1997

B E F O R E :

THE VICE PRESIDENT

(LORD JUSTICE ROSE )

MR JUSTICE OWEN

and

MR JUSTICE MORLAND

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R E G I N A

- v -

THOMAS SIM BEEDIE

- - - - - - - - - - - -

Computer Aided Transcript of the Steongraph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

- - - - - - - - - - - -

MR R SMITH QC (13/14.2.97) & MR GATESHILL appeared on behalf of the Appellant

MR K KEEN QC (13/14.2.97) & MR TREMBERG appeared on behalf of the Crown

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PROCEEDINGS

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Tuesday 11th March 1997

PROCEEDINGS

LORD JUSTICE ROSE: Mr Gateshill, you seek repayment of the appellant's legal aid contribution of £6,430, and a defendant's costs order in the sum of £525?

MR GATESHILL: Yes, please, my Lord.

LORD JUSTICE ROSE: We shall grant that.