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Cite as: [2013] 2 Cr App R 10, [2013] Crim LR 988, [2013] EWCA Crim 569, [2013] WLR(D) 149, [2014] QB 561, [2014] 2 WLR 701, [2014] 1 QB 561, (2013) 177 JP 588

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		Neutral Citation Number: [2013] EWCA Crim 569

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

24/04/2013

B e f o r e :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE CRANSTON
and
MR JUSTICE LEGGATT
____________________

Between:

	Regina	Appellant
	- and -
	JFJ	Respondent

____________________

John McGuinness QC for the Appellant
Adrian Waterman QC for the Respondent

Hearing date: 7 March 2013
____________________

HTML VERSION OF JUDGMENT
____________________

The President of the Queen's Bench Division:

Introduction

In this application under s.58 of the Criminal Justice Act 2003, the Crown seeks to challenge the ruling of a Crown Court judge that the respondent, JFJ, was entitled to a stay of the indictment charging him with the offence of assault occasioning actual bodily harm on the basis of a plea of autrefois acquit. As we consider the plea does not arise, the prosecution will proceed. The reasoning of our decision turns essentially on issues of law; it is possible therefore to set out the background facts of the case in brief outline so that the judgment can be made public without risk of prejudice to the trial.

The background facts

JFJ was arrested on 12 February 2012 on an allegation that he had in the early hours of that day assaulted his partner with whom he had been in a long term relationship. Later the same morning, he was charged with common assault; there was medical evidence of minor injury. He appeared at the Magistrates' Court 9 days later on 21 February 2012. The charge was put and he pleaded not guilty. The case was adjourned for trial on 2 April 2012 before the same court.

Subsequent to that hearing the prosecution received medical evidence that showed that the alleged victim had received far more serious injuries than was at first apparent. The Crown Prosecution Service therefore wrote to the solicitors acting for JFJ on 21 March 2012 stating that the prosecution intended to add a charge of assault occasioning actual bodily harm under s.47 of the Offences Against the Person Act 1861 "in place of the common assault". The letter stated a hearing would be arranged before the scheduled summary trial date of 2 April 2012; that at the hearing the mode of trial would have to be considered as, in the light of the new circumstances, the case was considered to be outside the sentencing powers of the Magistrates' Court.

That hearing took place on 27 March 2012. The court proceeded under s.17A of the Magistrates' Court Act 1980 to put the charge under s.47 to him and to ask him to indicate his plea. JFJ indicated a plea of not guilty. The Magistrates decided that the matter was more appropriate for trial on indictment. They therefore adjourned the matter for committal and vacated the trial date of 2 April 2012. The CPS lawyer present then said that he would offer no evidence on the common assault charge. The Magistrates thereupon dismissed the charge of common assault. The court record states that the charge of common assault was "dismissed (no evidence offered)." On 22 May 2012 the matter was duly committed to the Crown Court at a further hearing before the Magistrates.

On 8 August 2012, at a hearing in the Crown Court, the point was taken on behalf of JFJ that the dismissal of the common assault charge gave rise to a plea of autrefois acquit; the Crown Court should on the authority of R v G [2001] EWCA Crim 1215, [2001] 1 WLR 1727 enter a verdict of not guilty on the indictment charging him with assault occasioning actual bodily harm. The Crown Court judge considered that R v G was indistinguishable, accepted the contention made on behalf of JFJ and stayed the indictment.

The issues in this court

In the present case, there is no doubt that, if the prosecutor had instead of offering no evidence on the charge of common assault, asked that the trial of the common assault plea be adjourned sine die or had served notice of discontinuance under s.23(9) of the Prosecution of Offences Act 1985, the plea of autrefois could not have been made. It has not and could not have been suggested that to proceed with the charge under s.47 was in any way unfair or unjust to JFJ, let alone oppressive to him. In short, if the judge was right the technical error of the prosecutor in offering no evidence on the common assault charge has the consequence that there can be no trial of the allegations made against JFJ.

There is no doubt about the fundamental principle that underpins the decision on this issue - a person is not to be harassed or prosecuted twice for a crime. Thus if a person has been convicted of the crime previously, he cannot be tried again (autrefois convict); similarly if he has been acquitted of a crime, he cannot be tried again for the crime (autrefois acquit). A well known expression of the principle is that of Black J in the Supreme Court of the United States in Green v United States 355 U.S. 184, 188 (1957)

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty."

However the application of the principle to the present case gives rise to three issues for our decision:

i) What was the actual decision in Connelly v DPP [1964] AC 1254?

a) Was it that the plea of autrefois should be narrowly confined to a case where the offences were the same in fact or law? or

b) Was the plea applicable to cases where although the offences were not the same in law, they were substantially the same?

ii) Was JFJ in peril given (1) the fact that the charge of common assault was dismissed as part of a reorganisation of the prosecution case to which the defendant did not object and (2) the stage of the proceedings at which the Magistrates dismissed the charge?

iii) Is the court bound by the decision in R v G?

We have been greatly assisted by the excellent arguments both written and oral advanced by Mr McGuinness QC and Mr Waterman QC.

Issue I: The scope of the decision in Connelly

(a) The disputed issue

It might have been thought that there was no doubt about the scope of the decision in Connelly as to what was required in relation to the similarity of the crimes in law. Mr McGuinness QC on behalf of the Crown submitted that the law was clear; the speech of Lord Devlin set out the principle; the crimes had to be the same in law; if they were not, the plea of autrefois could not be established. Mr Waterman QC on behalf of JFJ contended that that was not the position, as three different cases had to be distinguished:

i) A case where the acquittal was for exactly the same offence – the issues of law and fact were identical.

ii) A case where two offences were not identical, but all the ingredients of one of the offences (the lesser offence) were ingredients of the other offence which had additional ingredients (the greater offence).

iii) A case where there was an overlap of fact between the two offences, but the crimes were not the same and all the ingredients of one were not part of the ingredients of the other offence.

In both the first and the second case, the crimes were the same for the purposes of the principle of autrefois; Connelly was the third type of case.

(b) Connelly

In Connelly, the appellant's conviction for murder during a robbery was quashed as there had been a misdirection. Because of a rule of practice at the time of not joining other counts to an indictment for murder, a count of robbery had not been included. The Court of Criminal Appeal then had no power to order a re-trial and so the appellant could not be re-tried for murder. He was, however, tried again but only on a count of robbery. He was convicted. The Court of Criminal Appeal upheld the conviction. There were two relevant issues in the House of Lords: first did the principle of autrefois apply? Second, if it did not, did the court have power to stay as an abuse of process, and, if so, should the prosecution for robbery have been stayed? Although the House was unanimous in deciding the appellant could be tried for robbery and dismissing the appeal, the speeches contain two differing views as to the scope of autrefois which are principally set out in the speeches of Lord Morris of Borth-y-Gest and Lord Devlin.

(c) The approach of Lord Morris

Lord Morris, after concluding that the preferring of a second indictment had not been an abuse of process, considered that there could be no bar to proceeding with a trial for robbery, unless the plea of autrefois could be invoked. He concluded that the plea could not be made. He set out what he believed the applicable principles to be at pages 1305-6. His first principle about which there was no disagreement was:

"(1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted"

However in the other principles he expressed, there was a difference between his approach and that of Lord Devlin. It is only necessary to refer to four:

"(2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted;

(3) that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same, as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted

….

(7) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings;

(8) that, apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies;"

He added at 1309:

"It matters not that incidents and occasions being examined on the trial of the second indictment are precisely the same as those which were examined on the trial of the first. The court is concerned with charges of offences or crimes. The test is, therefore, whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction."

Lord Morris then proceeded to an extensive review of the authorities. Most relevant to the issue, as refined before us, are two decisions which he considered at page 1315-17. The first is that of Coltman J in R v Walker (1843) 2 M & Rob 446 at the assizes at York. The defendant had assaulted two people, T and F, with a knife. The defendant was brought before Magistrates under s.27 of the Offences against the Person Act 1828 (9 Geo.4 c.31, Lord Lansdowne's Act) (the 1828 Act). The Magistrates, after a hearing at which T and F gave evidence about the assault on them with a knife, found him guilty of assault and ordered him to pay £5 with imprisonment for two months in default. The defendant was then arraigned at the assizes for stabbing, cutting and wounding with intent to maim T and F, doing the same with intent to disable and doing the same with intent to do grievous bodily harm. The defendant relied on s.28 of the 1828 Act which provided that if a defendant was convicted and served his sentence or paid the fine, he should be released from all further proceedings for "the same cause". The point was taken on behalf of the prosecutor that he had not been in jeopardy for the offence with which he had been charged at the assizes, because the charge at the assizes was not "the same cause" as that for which he had been convicted by the Magistrates who had no jurisdiction to try the more serious charges. Coltman J rested his decision partly on the 1828 Act and partly on a wider principle:

"On a complaint for a common assault they were to determine whether such assault was accompanied with any felonious intention; on that question they have adjudicated, and their decision is final. They are like any other Court of competent jurisdiction. It is the same as if the party had been convicted by a jury of the assault. I see no difference in principle whether a party has been convicted or acquitted. Suppose a party had been acquitted by a jury of an assault, and he was afterwards indicted for the felony which involved that assault; it is clear, if he did not make the assault, he could not be guilty of that which includes and depends upon the assault. There is no difference in such a case whether the party was acquitted or convicted. In either case the felonious intention would be negatived, and the party could not afterwards be indicted for a felony. The question here at issue has, I think, been well raised by the demurrer."

Lord Morris observed at page 1317:

"Again the same test appears and was applied. Would the evidence which was necessary to support the indictments be sufficient to convict of the earlier charge? If the prisoner had been acquitted by the magistrates he could not have been later charged with the felony. To prove an assault with intent would involve proving an assault: but he would have been acquitted of an assault. Furthermore, a court having jurisdiction to decide the matter would have decided that there was no felonious intent. The same reasoning applied where there had been a conviction before magistrates. The prisoner could not later be convicted of the felony. That would be for two reasons: (1) that the felony would involve the assault: it would include and depend upon the assault: and he had already been convicted of the assault; (2) a court having jurisdiction to decide the matter would have held that there was no felony."

The second relevant decision is R v Elrington (1861) 1 B. & S. 688. The defendant had been tried before Magistrates for an assault and had been acquitted. S.28 of the 1828 Act also provided that in such circumstances a person should be provided with a certificate, and, if so provided, should be "released from all further or other proceedings civil or criminal, for the same cause". He was subsequently indicted in respect of the same facts, for (1) assault occasioning grievous bodily harm, (2) assault occasioning actual bodily harm and (3) common assault. In reliance on s.28 of the 1828 Act Cockburn CJ and Blackburn J held that the defendant could rely upon the express words of the statute. Cockburn CJ added:

"We must bear in mind the well established principle of our criminal law 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 more aggravated form."

Lord Morris observed at page 1315 that Cockburn CJ must have been referring to the principle of autrefois acquit. Lord Hodson (at page 1332) considered that Cockburn CJ was extending the narrow principle of autrefois and it might be called "the ascending scale principle".

It was submitted by Mr Waterman QC that these two decisions not only made good the seventh and eighth principles set out by Lord Morris, but also covered the second type of case to which he referred as we have set out at paragraph 9 above.

(d) The approach of Lord Devlin

Lord Devlin was of the view that the principle of autrefois should be narrowly confined and that the court should prevent a second trial where it was appropriate through the court's inherent power to stay for abuse of process. His view on the narrow scope of autrefois is set out at p 1339-1340:

"For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. 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…

I would add one further comment. [Lord Morris] in his statement of the law, accepting what is suggested in some dicta in the authorities, extends the doctrine to cover offences which are in effect the same or substantially the same. I entirely agree with [Lord Morris] that these dicta refer to the legal characteristics of an offence and not to the facts on which it is based: see R v. Kendrick and Smith. I have no difficulty about the idea that one set of facts may be substantially but not exactly the same as another. I have more difficulty with the idea that an offence may be substantially the same as another in its legal characteristics; legal characteristics are precise things and are either the same or not. If I had felt that the doctrine of autrefois was the only form of relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go. But, as that is not my view, I am inclined to favour keeping it within limits that are precise."

The other form of relief was the inherent power of the court to ensure that the processes of the court were used fairly which he summarised at page 1347.

"The judges of the High Court have in their inherent jurisdiction, both in civil and criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice to ensure that the court's process is used fairly and conveniently by both sides.....

... a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English criminal law."

After determining that the courts had power to see a defendant was not oppressed by having the case against him spread over too many indictments, he then concluded (at page 1353):

"In my opinion, if the Crown were to be allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, there would be a grave danger of abuse and of injustice to defendants. The Crown might, for example, begin with a minor accusation so as to have a trial run and test the strength of the defence. Or, as a way of getting round the impotence of the Court of Criminal Appeal to order a new trial when, as in this case, it quashes a conviction, the Crown might keep a count up its sleeve. Or a private prosecutor might seek to harass a defendant by multiplicity of process in the different courts."

He treated R v Elrington as an example of this wider principle and not as the application of autrefois (see page 1357). The two principles should be treated as distinct as autrefois gave an absolute right to relief, where the other only gave a qualified relief. He concluded (at page 1359-60) that the inherent power enabled a court to provide protection. It could stay an indictment when the charges in that indictment were founded on the same facts as the charges in a previous indictment on which the defendant had been tried, or formed or were part of a series of offences of the same or a similar character as the offences charged in the previous indictment. In those circumstances it would be oppressive to have a second trial. However

".. a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient. The judge must then, in all the circumstances of the particular case, exercise his general discretion as to whether he accepts the general rule."

An example Lord Devlin gave of the special circumstances was a case where the prosecution considered two trials of offences by preferring two indictments and the defence accepted the choice without complaint and availed itself of any advantage which might flow from it.

Lord Pearce treated Elrington as a case where the court's decision was grounded in its inherent powers to prevent abuse (see pages 1364-7).

(e) Our conclusion

It is well recognised that it is by no means easy to determine what the ratio in Connelly was: see the analysis of Professor Martin Friedland QC in Double Jeopardy (Oxford, 1969). In our view the majority decision is contained in the speech of Lord Devlin. Lord Reid (at 1295) and Lord Pearce (at 1368) agreed with Lord Devlin, rather than Lord Morris, even though Lord Morris' speech is sometimes treated as authoritative. It follows that the scope of autrefois is narrow and the offence, as well as the facts, must be the same for the plea of autrefois to apply.

That is what this court concluded in R v Beedie [1998] QB 356 where Rose LJ, giving the reserved judgment of the court, accepted that the ratio of Connelly was expressed in Lord Devlin's, not Lord Morris' speech on the ambit of the plea of autrefois. In that case, a tenant had died of carbon monoxide poisoning; the landlord had pleaded guilty to offences under Health and Safety and other legislation. At a subsequent inquest the landlord gave evidence having been told that as he had been prosecuted he could suffer no prejudice. The inquest jury returned a verdict of unlawful killing and he was charged with manslaughter. The trial judge, Clarke J (as he then was) rejected the plea of autrefois on the basis that on analysis the majority of the House in Connelly identified a narrow principle of autrefois; it applied only where the same offence was alleged in the second indictment. This court held that the defence had been right to accept on appeal the correctness of that analysis. The Court allowed the appeal on the basis that the court had power to stay the indictment and should have exercised that power. There were no exceptional circumstances to permit a second trial. The subsequent indictment charging manslaughter should have been stayed since it was based on substantially the same facts as the earlier prosecution, but gave rise to a prosecution of an offence of greater gravity, in breach of the principle in Elrington.

Very recently in R v Bayode [2013] EWCA Crim 356, this court reached the same conclusion; Hughes LJ, at paragraph 17, set out the reasons for concluding that the scope of autrefois was limited to that set out in the speech of Lord Devlin.

The view of this court in Beedie and Bayode and the view we have expressed to the same effect is the same as that of the Law Commission expressed at paragraph 2.3 of its Report entitled Double Jeopardy and Prosecution Appeals (2001), Law Com 267; see also Friedland (to which we have referred at paragraph 23), and Cross and Tapper on Evidence at page 98 of the 12^th Edition (2010): cf Blackstone (2013) at paragraph D.12.24 and at Archbold (2013) at 4-88 and 4-183-4.

We do not consider that the decisions in Walker and Elrington point to a wider scope for the doctrine of autrefois. If, as Lord Devlin stated, the scope of autrefois is narrow, then these cases turn on the wider principles through which the court ensured the just treatment of an accused.

The present case provides very compelling illustration as to the need to confine the plea of autrefois to a narrow basis. As Lord Devlin made clear at page 1347-8:

"... I must observe that nearly the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accused. The doctrine of autrefois was itself doubtless evolved in that way."

If the plea was not narrowly confined as set out in the speech of Lord Devlin, in the present case a technical error would result in injustice. It might be said that it was incumbent on the Crown to avoid such errors; but, as the cases to which we shall refer demonstrate, such a hope has, even in times past, never been reflected in experience. In any case where the narrow application of the principle would result in unfairness or injustice to a defendant amounting to oppression, the remedy lies in the power of the court to stay the proceedings.

No submission has been made, nor could it be made, that in the present case, the Crown's conduct in seeking to have JFJ tried on a greater charge when he has technically been acquitted on the lesser charge is in any way unfair or unjust, let alone abusive or oppressive.

Issue II: Was JFJ in peril?

If our view on the first issue is correct, then subject to the effect of the decision in R v G, the second issue identified by us at paragraph 8 does not arise and the appeal must be allowed. However, we have reached clear conclusions on those issues which would result in the allowing of the appeal, if we were wrong on the first issue. We therefore turn to consider the second issue, namely whether JFJ was in peril.

The principle is clear; it was expressed by Lord Devlin in Connelly at page 1353:

"The doctrine of autrefois protects an accused in circumstances in which he has actually been in peril. It cannot, naturally enough, protect him in circumstances in which he could have been put in peril but was not."

But what is meant by being in peril? In Haynes v Davis [1915] 1 KB 332, Lush J, cited a passage in Russell on Crimes which set out three requirements for a person to be in peril – (1) the court was competent to try him for the offence (2) the trial was on a good indictment on which a conviction could be entered and (3) the acquittal was on the merits. He continued:

"I quite agree that "acquittal on the merits" does not mean that the jury or the magistrate must find as a matter of fact that the person charged was innocent; it is just as much an acquittal upon the merits if the judge or the magistrate were to rule upon the construction of an Act of Parliament that the accused was in law entitled to be acquitted as in law he was not guilty, and to that extent the expression "acquittal on the merits" must be qualified, but in my view the expression is used by way of antithesis to a dismissal of the charge upon some technical ground which had been a bar to the adjudicating upon it. That is why this expression is important, however one may qualify it, and I think the antithesis is between an adjudication of not guilty upon some matter of fact or law and a discharge of the person charged on the ground that there are reasons why the Court cannot proceed to find if he is guilty."

That was a dissenting judgment, but it expressed an analysis of the law which was little different to that of the majority. More importantly, it has been approved in the Court of Appeal Civil Division in Jelson Estates v Harvey [1983] 1 WLR 1401 as correctly expressing the legal principles and applied in several of the decisions to which we shall refer.

The application of these principles to the present case turns in our view on two questions:

i) Was the defendant in peril if the charge was dismissed in the context of a simple reorganisation of the prosecution case in a manner to which the defendant did not object?

ii) Was the dismissal of the charge of common assault done at a stage in the proceedings when the defendant could not realistically be said to be in peril?

Re-organisation of the Crown's case

The suggestion that action taken on a re-organisation of the Crown's case (to which the defence did not object) did not put the defendant in peril was first considered in R v Dabhade [1993] QB 329, (1993) 96 Cr App R 146. The defendant was charged with obtaining by deception; he chose summary trial, pleaded not guilty and a date for trial was fixed. At the trial a charge of theft was preferred. The Magistrate declined to accept jurisdiction to try the case; instead he proceeded to consider committal to the Crown Court on the charge of theft. The prosecution offered no evidence on the charge of obtaining by deception. The accused was then committed by the Magistrate for trial at the Crown Court where he was convicted of theft. At the Crown Court he unsuccessfully advanced the plea of autrefois. The Court of Appeal in dismissing the appeal from the Crown Court reviewed a number of cases and set out a number of principles at page 341(and 154 respectively): the fourth principle was:

"If, moreover, the context in which a charge is summarily dismissed is a rationalisation or reorganisation of the prosecution's case, so that, no doubt in recognition of the difficulties that may lie ahead in the successful prosecution of the original charge, it is decided to substitute therefor a new charge which is regarded as more appropriate to the facts, then the consensual dismissal of the original charge, upon the substitution of the new one, will not give rise to the application of the doctrine of autrefois acquit: Broadbent v High. Admittedly, the prosecution have not been put to their election; but that is merely because it is at their instance that the new and substituted charge is preferred. Apart from anything else, including the fact that to hold otherwise would be contrary to common sense, it is plainly undesirable that the prosecution should be obliged to keep alive a charge upon which they have no intention of seeking a conviction merely to meet any subsequent attempt to apply the doctrine of autrefois acquit in circumstances which are both technical and without merit."

The late Professor Sir John Smith in a comment in the Criminal Law Review at [1993] Crim LR 67, gave his general approval to the fourth principle in that no injustice was done to the defendant, but pointed out:

"The application of this principle may not, however, be sufficient if the acquittal on the first charge would be inconsistent with the conviction on the second. The record would then say both that the defendant was guilty, and that he was not guilty, of the conduct in question; and that does not seem tolerable. This was not so in the present case: the defendant was not guilty of obtaining the money by the deception alleged; and he was guilty of stealing it."

Dabhade was followed in DPP v Riches [1993] COD 457; the only report now apparently available is that in the Crown Office Digest though a full report did at some stage exist. The accused was charged with stealing money from his employers over a 4 week period; the original charge covered the full period, but at a hearing prior to the trial the prosecutor preferred 4 charges, one covering each week. The accused agreed to a summary trial and pleaded not guilty to all charges. The prosecution then offered no evidence on the original charge. The matter was adjourned for trial; at the trial, the Magistrates accepted a plea of autrefois. The Divisional Court (Watkins LJ and Tuckey J) reversed the decision. They held that, although the accused and his advisers may not have expressly consented to the course the prosecution followed, it was apparent that what happened was consensual. The new charges (which self evidently covered the same ground as the original charge) were proffered and, immediately after the defendant's plea had been taken, no evidence was offered on the original charge. The prosecution accepted he should be found not guilty of that charge and to that extent what happened was consensual.

It was also followed in this court (Russell and Pill LJJ and Turner J) in R v Brookes [1995] Crim LR 630. The defendant was charged originally with an offence of grievous bodily harm contrary to s.20 of the Offences Against the Person Act 1861; he pleaded not guilty before the Magistrates. Five weeks later the prosecution decided to proceed with a charge of grievous bodily harm with intent under s.18. At a hearing before the Magistrates, the prosecution offered no evidence on the charge under s.20 and immediately thereafter the charge under s.18 was laid. The defendant unsuccessfully relied on the plea of autrefois acquit and abuse of process. The brief report notes that the court held that the adjudication of not guilty did not reflect anything other than the prosecution decision already communicated to the defence. The court stated:

"So far as the present case is concerned, the magistrates' court had not embarked upon a trial of the merits. The adjudication of not guilty did not reflect anything other than the prosecution decision, which had already been communicated to the defence, that they would not be proceeding with the charge under s.20 but would instead prefer the more serious charge under s.18. There is no possibility here that the defence were under any misapprehension as to what the procedure, mistakenly and wrongly adopted, was as a matter of fact intended to achieve … We have come to the clear conclusion that since there was no question of anybody being misled by what happened in the magistrates' court…, the decision of [the judge] not to uphold the plea in bar was entirely correct."

This decision was the subject of a further comment by Sir John Smith who after referring to his comment on Dabhade, stated:

"The present case goes farther. In Dabhade there was no inconsistency on the record: an acquittal of obtaining by deception contrary to section 15 of the Theft Act 1968 is not inconsistent with a conviction for theft contrary to section 1 of that Act on the same facts. But an acquittal of an offence under section 20 is inconsistent with a conviction of an offence under section 18 on the same facts. The greater offence includes the lesser. The justification is that the acquittal was not a "real" acquittal. Real or not, it was presumably recorded and the record is false."

We shall return to the decision in Dabhade, as this court overruled it in 2001 in R v G - see paragraphs 52 and following

Nonetheless Brookes was followed in DPP v Khan [1997] RTR 82. The defendant was charged in respect of the same incident with dangerous driving, careless driving and driving without due consideration. He pleaded not guilty to the charges. The prosecution asked for the charge of careless driving to be adjourned sine die; the Magistrates did so. The prosecution then offered no evidence on the charge of driving without due consideration; the Magistrates formally acquitted him of the offence. After hearing evidence, they convicted him of dangerous driving. He successfully appealed to the Crown Court which determined that on the charge of dangerous driving the Magistrates should have accepted on the charge of dangerous driving autrefois on the basis of what Lord Morris said in Connelly at page 1309 (see paragraph 13 above). The Divisional Court (Schiemann LJ and Holland J) held that was incorrect, applying the decision in Brookes. It did not matter that the defendant had been deprived of the opportunity of being convicted of the lesser offence, as the court would do its judicial duty of convicting of the more serious offence only if it was strictly proved.

We do not need to refer to cases where the defendant may not be in peril for other reasons such as the deficiency in the charge as DPP v Porthouse (1989) Cr App R 21 or the more difficult decision in Broadbent v High [1985] RTR 359. They do not assist on the issues in this appeal.

When all that is being done is that the Crown is re-organising its case and no objection is taken, the decisions to which we have referred make it clear that it cannot be said that the defendant is in peril in such circumstances. This is fully in accordance with the reality that the defendant is not in such circumstances at risk of conviction of the offence which is not to be pursued. Although we see the force of the point made by Sir John Smith that the Magistrates' Court record states there has been an acquittal on the charge of common assault, that does not mean he was in peril at the time. He plainly was not in peril. The formality of the record of the court should make no difference to the reality.

The stage in the proceedings at which he becomes in peril

There is no doubt that in the Crown Court, the defendant is in peril when the defendant is put in charge of the jury. The position as to when the defendant is in peril in the Magistrates, Court is less clear on the authorities.

If the court sets a date for trial, the defendant attends and the prosecutor unsuccessfully applies for an adjournment of the trial, then the Magistrates are entitled to proceed with the trial. The defendant is then in peril. If the prosecution has no evidence to call, an acquittal by the Magistrates is at a time when the defendant is in peril for the purpose of autrefois. This is what happened in R v Swansea Justices ex p Purvis (1981) JP 252. After a plea of not guilty, the Magistrates adjourned the case for a trial. On the date fixed for the trial, the prosecution did not have its witnesses and sought an adjournment. The Magistrates, acting within their discretion, refused an adjournment. As the prosecution could not call any evidence against the defendant, they dismissed the charge. A fresh information was preferred. The Magistrates refused an application to dismiss the fresh information. In quashing the decision, Donaldson LJ (with whom Bingham J agreed) said:

"In the present context "on the merits" is a phrase which distinguishes between where a court is in a position to convict but does not do so and the position where a court is unable to proceed to consider the question of conviction or acquittal because it has no power, or thinks it has no power, to adjudicate."

The decision by Judge David QC (a very experienced and distinguished circuit judge) in R v Pressick [1978] Crim LR 377 was to the same effect.

Those were cases where the trial had actually begun in the sense that the court was ready to hear the witnesses. It has, however, been suggested that a trial in the Magistrates' Court begins when a plea is taken. In Dabhade, Wright J in giving the judgment of the court set out in his first principle:

"For the principle of autrefois to apply, the defendant must have been put in jeopardy. Quite apart from all other requirements, he must demonstrate that the earlier proceedings that he relies upon must have been commenced - that is, by plea in summary proceedings, or by his being put in charge of the jury in a trial on indictment."

A similar view was expressed by Rougier J giving the judgment of the Divisional Court in Williams v DPP [1991] 1 WLR 1160. The defendant driver had been required to have samples of blood taken with the result under the legislation that the prosecution could not rely on the samples of breath. Nonetheless an information was preferred on the basis of the samples of breath. Before the driver pleaded, his solicitor obtained the dismissal of the charge on the basis he could not be convicted. A fresh information was laid on the basis of the samples of blood. He was convicted. The court held he had not been in peril as the earlier charge was dismissed before he pleaded:

"Herein assistance is to be derived from two cases. The first is R v. Tonner [1985] 1 W.L.R. 344, where it was held that on an indictment a trial starts, not upon the arraignment of the defendant but once a jury has been sworn and the defendant has been put in their charge. In dealing with a situation in the magistrates' court, in R v. Hammersmith Juvenile Court, ex parte O. (1987) 86 Cr.App.R. 343, the court there held that a trial in a juvenile court begins when the plea is taken.

It seems to me that in proceedings before justices, this is the logical moment whereat a defendant begins to be in peril of a conviction. Although it could be said that when a preliminary point is taken before plea, battle has been joined, as it were, yet all that is due to happen at that stage is that the point is decided either for or against the defendant; he is not in peril of conviction of the charge he is called upon to answer as a result of that decision. I am of the opinion that the decisions in various defendants' favour in most of the cases cited to us, and to which I have already referred, are explicable on the basis that the defendant has entered a plea of not guilty."

The question whether the defendant was in peril in such circumstances was considered in Holmes v Campbell (1998) 162 JP 655. That was a prosecution by the Environment Agency where summary trial had been agreed and not guilty pleas entered. The defendants then indicated at a later stage in the proceedings that they would plead guilty. A date was set for the taking of those pleas at a hearing. An error was made by the prosecutor as to the time of the hearing. When she did not appear, the Magistrates dismissed the informations. The Agency preferred new informations which the Magistrates declined to hear. In the appeal to the Divisional Court the Agency did not contend that the hearing at which the Magistrates dismissed the original informations was a nullity. Although the Agency accepted that the decision amounted to an acquittal, the Agency contended it did not give rise to the plea of autrefois in respect of the new informations. The Divisional Court (Schiemann LJ and Brian Smedley J) held the Agency was correct. Applying the principles set out by Lush J in Haynes v Davis, the court concluded that the second and third conditions were not met, as on the terms of s.15 of the Magistrates' Court Act 1980 (MCA), the court could not have convicted the defendants on the day that the Agency did not appear. They were therefore not in peril and there had been no acquittal on the merits. The court said in respect of the defendants' contention that they were in peril from the moment they had tended a plea of not guilty:

"One has to bear in mind now that there are distinct procedures to be gone through when a person is summonsed to face offences which are triable either way before the plea is taken, but he says that at the latest the accused is in jeopardy from the moment of plea. Support for that proposition is derived from the words of Rougier J in Williams v DPP [1991] All ER at page 659, where he says that when an accused is to be tried on indictment the moment when he is in peril is when the jury are sworn to try him and he is put in their charge. The fact that he may have been arraigned at some much earlier stage, (and frequently nowadays is), is irrelevant. Until the jury have been sworn although he may be acquitted by order of the Judge he cannot be convicted. That is certainly correct but why the position should be so different in the Magistrates' court it is difficult to see. On the facts of the present case there was never any risk of the defendants being convicted by the court sitting on 12^th November unless they had entered pleas of "Guilty" and, probably not even then, unless the prosecution advocate was there."

In ex parte O (to which Rougier J referred in Williams as we have set out at paragraph 47) the Divisional Court's conclusion that a trial at the Magistrates' Court began when the plea was taken was in part based on s.9 of the MCA and in part by analogy with the Crown Court:

"If it be permissible to compare the situation with a trial on indictment, it would seem to be difficult to contend that the trial has not started when the accused has been arraigned and asked to plead to the indictment."

Whatever may have been the position in the 1990s, it is clear that the pre-trial process in the Magistrates' Courts and the Crown Court now have much greater similarity. A plea should ordinarily be taken in the Magistrates' Court at the first hearing; directions are then given and a trial date fixed. In the Crown Court, there is a plea and directions hearing at which the plea is ordinarily taken and the trial date or trial window fixed either then or shortly thereafter. It is clearly right that a defendant is only in peril of conviction at the Crown Court when he is put in charge of the jury. S.9 of the MCA 1980 provides that at a summary trial the court shall put the information to the defendant and ask whether he pleads guilty or not guilty; the court, after hearing the evidence and the parties is to convict or dismiss the information. It does not mean that the trial always commences when the information is put and the plea made. There is no reason for treating the position in the Magistrates' Courts as being different. The defendant can be in peril only when the Magistrates or District Judge are at a hearing for the purpose of determining whether the defendant is guilty; that can be the first hearing when the plea is put, but these days it is more likely to be the date fixed for the summary trial.

Conclusion

In the present case, at the time that no evidence was offered, JFJ had been charged with assault occasioning actual bodily harm, the Magistrates' Court had determined that the case should be committed to the Crown Court and the court had adjourned the proceedings under that charge for committal. No objection was taken to that course. In our view, JFJ was not in peril at the time the prosecutor subsequently offered no evidence and the charge was dismissed by the Magistrates. That was both because the defence had not objected to the reorganisation of the way in which the prosecution was to put its case and because in any event a stage in the proceedings had not yet been reached where he could be in peril.

Issue III: Is the court bound by the decision in R v G?

In R v G, G was charged initially with various offences of affray, assault occasioning actual bodily harm on another and an offence of common assault on R. The matter was committed to the Crown Court. At a hearing in the Crown Court, the prosecution sought to amend the indictment to add a count of assault occasioning actual bodily harm to R because of the extent of R's injuries. Counsel for the Crown said no evidence would be offered on the count of the common assault count in relation to R on the basis defence counsel "would not take any autrefois acquit point." The Crown then offered no evidence. The Recorder entered a verdict of not guilty under s.17 of the Criminal Justice Act 1967 (CJA 1967). That section provides that if the court enters a verdict of not guilty when the prosecution offers no evidence against a defendant arraigned on indictment "the verdict should have the same effect as if the defendant had been tried and acquitted on the verdict of a jury". The matter was adjourned for trial.

New counsel for the defendant who appeared at the trial argued that a plea of autrefois did arise. The judge ruled against this on the basis of Brookes. On the appeal it was submitted on behalf of the defendant that the mens rea and actus reus of common assault and assault occasioning actual bodily harm were the same, the difference between the offences being whether injury had actually been caused to the victim. The defendant was entitled to rely on the defence of autrefois acquit where a verdict of not guilty had been entered in relation to common assault as the verdict meant an acquittal by virtue of s.17 of the CJA 1967.

The court accepted this argument (see paragraph 18 of the judgment) on the basis there was no answer to the point on s.17 advanced on behalf of the defendant. The court concluded that Brookes was wrongly decided. In its view, the court in Brookes had overlooked s.27 of the MCA (which has the same effect as s.17 CJA 1967): s.27 of the MCA provides

"Where on the summary trial of an information for an offence triable either way the court dismisses the information, the dismissal shall have the same effect as an acquittal on indictment".

The court then went on to refer to the comment of Sir John Smith on Brookes to which we have referred at paragraph 40 above, adding "It seems fair to infer that Sir John Smith was not impressed with the court's decision in R v Brookes". Although the court observed that that comment was not fatal to the decision, what was fatal was the failure of the court to take account of s.27 of the MCA. If that had been drawn to the attention of the court it was highly unlikely that the decision of the court would have been as it was. Brookes must, the court concluded, be regarded as decided per incuriam.

We regret that we cannot agree with the conclusion reached in R v G. It must be regarded as wrongly decided for a number of reasons which permit us to depart from it upon the well established principles set out most recently in R v Magro, Varma and others [2011] QB 398.

i) The offences were not the same in law, as they must be if the plea of autrefois is to be available. We have already set out our reasons for reaching that conclusion. Neither Connelly nor Beedie were drawn to the attention of the court in R v G. If they had been, the decision would have been different.

ii) None of the line of cases to which we have referred at paragraphs 36 and following, except Brookes and Dabhade, was put before the court. Dabhade was not referred to in the judgment and the court did not consider whether the defendant was in peril either because the Crown was reorganising its case without objection from the defence or because of the point in time at which the decision to offer no evidence was made. Had it done so, it would not have reached the conclusion it did.

In any event R v G can be distinguished. The court relied very much on s.27 of the MCA. In the present appeal, s.27 has no application as common assault is not an offence triable either way. It is a summary offence to which s.40 of the Criminal Justice Act 1988 applies; common assault may be included on the indictment, but it remains under s.39 of that Act a summary offence. There is no equivalent to s.27 of the MCA which equates the dismissal of a summary only offence to an acquittal on indictment.

In the result, we do not consider ourselves bound by R v G, or if we were, it is distinguishable. We must decide the case on the well established principles we have set out, particularly the ratio of decision in Connelly.

Conclusion

For the reasons we have given, the appeal must be allowed and JFJ tried as soon as possible in the Crown Court on the charge of assault occasioning actual bodily harm.