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You are here: BAILII >> Databases >> The Law Commission >> Double Jeopardy and Prosecution Appeals Part II [2001] EWLC 267(2) (15 March 2001)
URL: http://www.bailii.org/ew/other/EWLC/2001/267(2).html
Cite as: [2001] EWLC 267(2)
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PART II
THE PRESENT DOMESTIC LAW
2.1 In this part we summarise the present domestic English law[1] on the matters discussed in this report, namely:(1) the "autrefois" rule, which states that a defendant who has been finally convicted or acquitted may not be tried again for the same offence, and the exception for acquittals that are "tainted";
(2) the discretion to stay proceedings which would be an abuse of the process of the court, and the way in which that discretion is applied where the defendant has already been acquitted or convicted on the same or substantially the same facts;
(3) the position where, without actually charging the defendant with an offence of which he or she has already been acquitted, the prosecution seeks to adduce evidence that the defendant was in fact guilty of such an offence;
(4) the various rights of appeal currently available to the prosecution; and
(5) the circumstances in which a retrial may be held.
The autrefois rule
2.2 The doctrines of autrefois acquit and autrefois convict state that no-one may be put in peril twice for the same offence. Accordingly, where a person has previously been acquitted or convicted (or could, by an alternative verdict, have been convicted) of an offence and is later charged on indictment with the same offence, a plea of autrefois will bar the prosecution. An analogous rule applies in summary trials.Identity in law and fact
2.3 The offence with which the defendant is now charged must be identical to the offence of which he or she was previously acquitted or convicted. Thus in Connelly v DPP[2] the rule was held not to protect the defendant from being tried for robbery after being acquitted of a murder committed in the course of the robbery.[3] Lord Devlin explained that "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."[4] 2.4 This narrow view of the rule was confirmed by the Court of Appeal in Beedie,[5] holding that in Connelly the majority had "identified a narrow principle of autrefois, applicable only where the same offence is alleged in the second indictment".[6] The rule therefore did not apply where the defendant, having already pleaded guilty to summary offences under the Health and Safety at Work Act 1974 on the basis of his failure to maintain a gas fire in residential premises owned by him, was charged with the manslaughter of a resident who died from carbon monoxide poisoning as a result.[7] 2.5 Even on this narrow view, however, it is only in law that the offence charged must be identical to the previous charge. The facts need only be substantially the same. As Lord Devlin put it, "I have no difficulty about the idea that one set of facts may be substantially but not exactly the same as another", whereas, in respect of identity in law, "legal characteristics are precise things and are either the same or not".[8]The need for a valid acquittal or conviction
2.6 For a plea of autrefois to succeed there must previously have been a valid acquittal or conviction. This means, first, that the defendant must have been acquitted or convicted by a court of competent jurisdiction[9] and the proceedings must not have been ultra vires.[10] Thus a purported acquittal by a magistrates' court of an offence triable only on indictment will not found a plea of autrefois acquit.[11] Second, a purported acquittal or conviction by a competent court does not preclude a subsequent prosecution if the proceedings were so irregular as to be a nullity – for example, where magistrates purported to acquit without giving the prosecution an opportunity to adduce evidence,[12] or where two defendants were tried together without being joined in the same indictment.[13] An invalid acquittal cannot found a plea of autrefois because in law it does not exist. It is for this reason also that the Court of Appeal cannot "quash" an invalid conviction. However, it can order the conviction to be "set aside and annulled",[14] and award a "venire de novo" (a new trial, as distinct from a retrial after a valid trial).[15] 2.7 The need for an acquittal or conviction at the end of the first trial means that the autrefois rule does not apply where the defendant is discharged in committal proceedings,[16] where a summons is withdrawn before the defendant has pleaded to it,[17] where the information is dismissed owing to the non-appearance of the prosecutor,[18] or where the information was so faulty that the defendant could never have been in jeopardy on it.[19] In these cases, there is no finding of the court which amounts to an acquittal. 2.8 Conversely, if the trial is validly commenced and ends in an unequivocal verdict by a properly constituted tribunal, the fact that there was irregularity in the proceedings does not invalidate the verdict, and a retrial is possible only if ordered under the statutory powers of an appellate court.[20]The tainted acquittal procedure
2.9 Under the present law, there are three circumstances in which an apparently valid conviction or acquittal may be followed by a further trial for the same offence. Two of these cases, namely: a retrial following the prosecution successfully appealing a summary acquittal to the Divisional Court by way of a case stated; and a retrial ordered by the Court of Appeal upon a successful appeal against conviction, are not genuine exceptions to the autrefois rule. This is because an acquittal or conviction which is subject to appeal is not a final acquittal[21] until the appellate process has been concluded or the time allowed for appeal has expired. The existing law on prosecution rights of appeal and retrials is set out below.[22] The only genuine exception to the autrefois rule at present is the tainted acquittal procedure introduced by the Criminal Procedure and Investigations Act 1996. 2.10 That Act created a procedure by which a person could be retried for an offence of which that person had already been acquitted, if the acquittal was "tainted".[23] This procedure is available where(a) a person has been acquitted of an offence, and
2.11 If these conditions are met, and the court before which the person was convicted certifies that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted, and that it would not be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which he or she was acquitted, then an application may be made to the High Court for an order quashing the acquittal.[26] 2.12 The High Court may, upon such application, make an order under section 54(3) of the Act quashing the acquittal, but only if(b) a person has been convicted of an administration of justice offence[24] involving interference with or intimidation of a juror or a witness (or potential witness) in any proceedings which led to the acquittal.[25]
(1) it appears to the High Court likely that, but for the interference or intimidation, the acquitted person would not have been acquitted;
(2) it does not appear to the court that, because of lapse of time or for any other reason, it would be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which that person was acquitted;
(3) it appears to the court that the acquitted person has been given a reasonable opportunity to make written representations to the court; and
2.13 Where the High Court quashes the acquittal under section 54(3), new proceedings may be taken against the acquitted person for the offence of which that person was acquitted.[27](4) it appears to the court that the conviction for the administration of justice offence will stand.
Abuse of process
The general principles
2.14 The House of Lords' decision in Connelly[28] established that, outside the boundaries of the strict autrefois rule, protection against double jeopardy is provided by a special application of the abuse of process rules. The general principles of abuse of process as they are now understood cover cases in which it is not possible for the defendant to receive a fair trial, and cases in which, although the defendant could be fairly tried, it is unfair to put him or her on trial.[29] In the first category are cases in which there has been a delay between the commission of the offence and the trial, where potential evidence has been lost or destroyed,[30] or there has been prejudicial pre-trial publicity.[31] The second category includes cases in which the prosecution has gone back on promises not to prosecute or to discontinue proceedings,[32] or where the defendant has been brought within the jurisdiction in unlawful or unconscionable ways.[33] 2.15 It remains rare for a case to be stayed. The formal burden of proof (on the balance of probabilities)[34] rests on the defendant, who normally has to show that there is "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding".[35]The Connelly principle
2.16 Under the Connelly principle this burden is reversed. As Lord Devlin explained, where a person has once been tried in respect of particular facts, it is prima facie oppressive to put that person on trial a second time in relation to those same facts, because it will normally be the case that the second charge could and should have been dealt with at the same time as the first. The importance of this principle as a protection against double jeopardy was confirmed by the Court of Appeal in Beedie.[36] It was held that, while the autrefois rule did not protect against subsequent prosecution for a different offence on the same facts, the defendant in such a case is instead protected by a presumption that the proceedings should be stayed in the absence of special circumstances to justify them.[37] Where a defective gas fire on the defendant's premises had caused the death of a resident by carbon monoxide poisoning, and the defendant had already pleaded guilty to summary offences under the Health and Safety at Work Act 1974, a subsequent prosecution for manslaughter should therefore have been stayed. 2.17 The authorities provide little guidance as to what might constitute "special circumstances" sufficient to justify a new charge on the same facts. In Connelly itself, Lord Devlin declined to attempt "a comprehensive definition", but gave as an example a case where the prosecution considers that two charges should be charged separately, and prefers two indictments accordingly.In many cases this may be to the advantage of the defence. If the defence accepts the choice without complaint and avails itself of any advantage that may flow from it, I should regard that as a special circumstance …[38]
This suggests a relatively narrow application for the rule, applicable to cases where the defence has in effect acquiesced in the separation of the trials.
2.18 A more useful example is provided by the recent decision of three former judges of the Court of Appeal,[39] sitting as the Court of Appeal for Gibraltar, in Attorney General for Gibraltar v Leoni.[40] The defendants were seen jettisoning cargo from their boat on the approach of a police launch. The police suspected that the cargo was cannabis, but could not prove this until the cargo was recovered; and by that time the defendants had already pleaded guilty to an offence of jettisoning cargo. The Court of Appeal held that this was not enough to bring the Connelly principle into play, because the charges of possessing and importing cannabis did not arise out of the same facts as the charges of jettisoning cargo. The court went on to express the view that the recovery of the cannabis, after the defendants had been dealt with on the jettisoning charge, would in any event have amounted to special circumstances. It has long been established that the occurrence of some new event after a conviction for a lesser offence is no bar to a later prosecution for an aggravated offence: for instance, a defendant convicted of an assault can be prosecuted for manslaughter if the victim of the assault dies after the conviction.[41] The court drew an analogy between the occurrence of a new event and the discovery of new evidence. 2.19 This tends to support the view that the discovery of new evidence may amount to a special circumstance for the purposes of the Connelly principle. It is noteworthy that the court took this view although the prosecution had been aware, at the time when the jettisoning charges were dealt with, that evidence of cannabis offences might yet be discovered. The argument for treating the discovery of new evidence as special circumstances must be all the stronger where, at the time of the first trial, the prosecution has no reason to suppose that evidence of another offence might become available.The Elrington principle
2.20 In Beedie[42] the defence also relied on a further principle, derived from the old case of Elrington.[43] In that case, justices had dismissed an information for assault against the defendant. He was then indicted for causing grievous bodily harm, on the basis of the same assault. Cockburn CJ stated as a principle of general application that "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".[44] In Beedie the Court of Appeal treated this principle (as well as the wider principle stated by Lord Devlin in Connelly) as a factor relevant to the judge's decision whether to stay the proceedings.[45] On this view, the Elrington principle has the effect that the presumption in favour of a stay is even stronger where the second charge does not merely arise out of the same facts but is an aggravated form of the first.[46] 2.21 In any event, it is established that a person who has been convicted of an offence can be prosecuted for an aggravated form of the same offence if the facts constituting the aggravated offence were not in existence at the time of the conviction. Thus a person convicted of an assault can be charged with murder or manslaughter if the victim subsequently dies from the injuries sustained.[47] This is an exception to the Elrington principle.The rule against challenging a previous acquittal
2.22 In CP 156 we also examined the rule in Sambasivam,[48] which we understood as stating that an acquittal could not subsequently be challenged in other proceedings against the same defendant by adducing evidence that the defendant was in fact guilty of the offence of which he or she had been acquitted. We provisionally proposed that, subject to the rule against double jeopardy and the rules on the admissibility of evidence of a defendant's previous misconduct,[49] the Sambasivam rule be abolished. 2.23 Our analysis in CP 156 was that the rule had two aspects. The first was its application to a case of true double jeopardy – that is, the situation where a person is prosecuted for a second time on the same or substantially the same facts, having already been once acquitted. The second and more difficult issue was whether the rule should continue to apply in cases where, although the prosecution's evidence contradicted the previous acquittal, the charge itself did not amount to double jeopardy, and there was therefore no need to get the acquittal quashed before proceeding with the second charge. This latter situation was, by definition, not a case of double jeopardy.[50] We considered it only because it was not easy to disentangle this aspect of the rule from its function in relation to double jeopardy. 2.24 On the first aspect, we concluded that the autrefois rule and the Connelly principle protected against second trials, so there was no further need for a restriction on evidence in trials that were anyway prohibited. Sambasivam was thus redundant for the purpose of protecting the defendant against double jeopardy. To the extent that second trials were permissible under an exception to the double jeopardy rule, we took the view that it would defeat the aims of the system if a second trial were allowed but without the evidence that would be admissible in any other trial. Moreover, the rule could not logically apply where the first acquittal had been quashed. 2.25 In relation to the second issue, whether evidence contradicting an acquittal could ever be adduced in a trial of the same defendant on another matter, we argued that the Sambasivam prohibition was difficult to support and that defendants were sufficiently protected by the ordinary rules on the admissibility of prejudicial evidence. It would not be possible to adduce evidence of another offence allegedly committed by the defendant unless the probative value of that evidence outweighed its likely prejudicial effect. The question for consideration was whether, where the defendant has been acquitted of that offence, the evidence should still be inadmissible even if its probative value does outweigh its prejudicial effect. 2.26 This very question came before the House of Lords in Z.[51] The defendant was charged with rape. He had already been convicted once and acquitted four times of rape. The Crown wished to call the complainants from the four acquittals. The trial judge, at a preparatory hearing, accepted that their evidence was sufficiently probative to outweigh the risk of prejudice, but felt bound to exclude it under the rule in Sambasivam. The Court of Appeal reluctantly felt bound to agree. The House of Lords, however, held that the evidence should be admitted. In a speech with which the other members of the House agreed, Lord Hutton expressly adopted the reasons we had given for abolishing the rule.[52] In particular, he quoted the following conclusion of CP 156:The second application of the rule is in the case where the charge laid is not itself inconsistent with the previous acquittal, but the prosecution seeks to adduce evidence which, if accepted, means that the defendant must have been guilty of the offence of which he or she was acquitted. In this context the rule seems to work as a kind of issue estoppel. But even in civil law the doctrine of issue estoppel is subject to certain qualifications, which must be equally applicable to any counterpart of that doctrine in criminal law. For example, it apparently does not apply where new evidence has emerged since the previous decision. Moreover, it does not render evidence inadmissible: it states that, once an issue has been determined, it is no longer an issue in subsequent proceedings between the same parties. In criminal law this would presumably mean only that the defendant cannot be charged with an offence if one of the elements of that offence (not just the evidence of it) is the defendant's guilt of an offence of which he or she has already been acquitted. But in that case the charge would arise out of the same facts as the first. It would therefore be a case of double jeopardy. It seems to follow that the rule in Sambasivam cannot properly be applied outside the context of double jeopardy – where it is redundant.[53]2.27 The House of Lords further considered that on its facts Sambasivam had been rightly decided for Connelly reasons, but that Lord MacDermott's general statement of principle in Sambasivam[54] had to be read subject to the qualification that its basis was in double jeopardy only. Lord Hope of Craighead said:
… the issue in the present case is not whether the defendant is guilty of having raped the three other complainants. He is not being put on trial again for those offences. The only issue is whether he is guilty of this fresh allegation of rape. The guiding principle is that prima facie all evidence which is relevant to the question whether the accused is guilty or innocent of the offence charged is admissible. It would seem to follow that the evidence of these three complainants should be held to be admissible in this case, subject to the discretion of the trial judge to exclude unfair evidence under section 78 of the Police and Criminal Evidence Act 1984. …
The principle which underlies [Sambasivam] is that of double jeopardy. … But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.
The evidence of the three complainants was, of course, relevant to the question whether he was guilty of the charges of rape of which he was acquitted. But that is not the question which is before the court in this case. Nor is there any question now of inflicting any kind of punishment on the defendant, whether directly or indirectly, for those alleged offences. I would hold therefore that the double jeopardy rule which Lord MacDermott was seeking to explain in Sambasivam's case would not be infringed by the admission of the evidence of these three complainants with a view to showing that the defendant was guilty of the crime of rape when he had sexual intercourse on a different occasion with someone else.[55]2.28 As the House of Lords' decision in Z has clarified the position so that it accords with our provisional proposals, we consider that there is no longer any need for legislative abolition of the Sambasivam rule. We therefore make no such recommendation.
Prosecution appeals
2.29 In this section we set out briefly the main forms of prosecution appeal or review in the current law of England and Wales. As will be seen, there are already many circumstances in which the prosecution enjoys limited rights of appeal.From the Crown Court
Attorney-General's references on a point of law
2.30 The Criminal Justice Act 1972, section 36, makes provision for the Attorney-General to refer a point of law, arising out of a trial on indictment which resulted in an acquittal, to the Court of Appeal. The Court of Appeal can refer the case to the House of Lords. Provision is made for the acquitted person to argue the point, either through an advocate or, with leave, in person. Where the acquitted person declines to do so, the court may appoint an advocate as an amicus curiae. The Court of Appeal gives its opinion on the point of law. This does not affect the acquittal of the defendant in any way. The purpose of the provision is to allow the court to correct an error of law made by a first instance judge and, by that means, clarify a difficult issue of law. It operates for the benefit of the development of the law to be applied in future cases, rather than to ensure that justice is done in the case giving rise to the reference. 2.31 The first reference was made in 1974. In the 25 years since then, there have been reported a total of 41. There are no reported references for some years (for instance, 1993 and 1997). In 1995 there were two; in 1996, one; and three for each of 1998 and 1999.Appeals against rulings at preparatory hearings
2.32 Under two separate statutory regimes, it is possible for a judge to hold a preparatory hearing. The earlier regime relates to serious fraud cases. The Criminal Justice Act 1987 established a new system for the prosecution and trial of serious fraud, largely based on the recommendations of the Roskill Committee.[56] In addition to preparatory hearings, the system included provision for transferring cases to the Crown Court, rather than requiring them to be committed by the magistrates.[57] In 1996, the Criminal Procedure and Investigations Act provided a similar preparatory hearing procedure designed for other types of long or complicated cases. The two systems have been brought generally into alignment with one another.[58] 2.33 The commencement of the preparatory hearing counts as the start of the trial (and so the defendant is arraigned at that time).[59] The purposes for which a hearing can be ordered are (a) identifying issues likely to be material to a jury, (b) assisting their understanding of such issues, (c) expediting proceedings before the jury, or (d) assisting trial management.[60] Under the system relating to serious fraud, it must appear to the judge that the evidence "reveals a case of fraud of such seriousness or complexity that substantial benefits are likely to accrue from a hearing before the jury is sworn".[61] The criterion under the 1996 Act is that the indictment must reveal "a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing before the jury is sworn".[62] 2.34 At a preparatory hearing, a judge may make a ruling on "any question as to the admissibility of evidence" and "any other question of law relating to the case".[63] Both parties have an interlocutory right of appeal against such a ruling to the Court of Appeal, subject to a requirement for leave.[64] In cases under the serious fraud regime the Court of Appeal has determined that the power to make these rulings is governed by the purposes for which the hearing may be held. As Evans LJ stated in Hedworth:… two conditions must be satisfied before the Court of Appeal can have jurisdiction [to hear an appeal from a preparatory hearing]: first, there must be an issue of law, or evidence, within section 9(3); secondly, the order appealed from must have been made within the ambit of the preparatory hearing, that is to say within the scope of section 7(1).[65]2.35 There are, therefore, two categories of ruling made at the same time or on the same occasion as a preparatory hearing, which are not subject to the right of appeal. First, a ruling may be made at a preparatory hearing, but not be a ruling on the law or the admissibility of evidence, and therefore not appealable. An example is an order directing the prosecution to supply a case statement under section 9(4) of the Act, which has been found to be a matter of pure case management.[66] Secondly, a ruling on law or admissibility made on the same occasion as a preparatory hearing may not be for one of the four purposes[67] laid down for preparatory hearings and so would not be considered as a preparatory hearing ruling.[68] As it is only preparatory hearing rulings which are appealable, rulings which are not within the "ambit" of the regime will not be appealable as an interlocutory matter.[69] The Court of Appeal has confirmed that certain applications made during the course of a preparatory hearing will not technically be part of that preparatory hearing because their purpose on an objective view was not one of the four in the preparatory hearing scheme, with the result that the Court of Appeal has no jurisdiction to hear interlocutory appeals on them, whether from the prosecution or the defence.[70] Thus, for instance, although an application to quash a count on the indictment might occasionally also serve one of the allowed purposes of preparatory hearings – the expedition of proceedings – the real purpose is to prevent the defendant having to face that count.[71] The result is a list of applications which cannot be made at a preparatory hearing: a motion to quash an indictment, an application based on whether the prosecution had power to bring the prosecution, an application to stay the indictment as an abuse of process, an application to apply reporting restrictions, an application to discharge a witness summons, and an application to sever.[72]
Unduly lenient sentences
2.36 The Criminal Justice Act 1988, section 36, introduced a prosecution right of appeal against sentence in certain limited classes of case. If of the opinion that a sentence passed in proceedings in the Crown Court is unduly lenient, the Attorney-General may refer the sentence to the Court of Appeal for "review". Having reviewed the original sentence, the Court of Appeal may quash it and substitute any alternative sentence it considers appropriate, provided that the Crown Court had the power to impose the alternative sentence. The provision applies to sentences passed for offences triable only on indictment and such other offences or "descriptions" of case as may be specified by order.[73] This order-making power has been used to apply the provisions to the smuggling of drugs and indecent or obscene material; the production, cultivation or supply of controlled drugs; indecent assault; unlawful sexual intercourse with a girl under 16; incitement of a girl under 16 to have incestuous sexual intercourse; gross indecency with a child under 14; threats to kill; cruelty to a child; and serious fraud cases.[74] Where a sentence has been reviewed under section 35, there is a power in the Court of Appeal to certify a point of law for the consideration of the House of Lords. 2.37 This power is much more extensively used than the power to refer a point of law, and the number of references has generally increased year by year. From 1989 to 1998, the figures for each year have been 9, 25, 26, 37, 30, 50, 77, 68, 70 and 95. The percentages of references heard which resulted in increases in sentence, for the same years, were 85.7, 85, 78.3, 87.9, 85.7, 81.3, 93.2, 74.2, 68.1, and 83.9.[75] In some cases the sentence is held to be unduly lenient in principle, but for other reasons is not increased.Judicial review
2.38 The Divisional Court of the Queen's Bench Division of the High Court has a general jurisdiction in respect of decisions of the Crown Court, "other than its jurisdiction in matters relating to trial on indictment" which are for the Court of Appeal.[76] Thus the main business of the Crown Court, trying cases on indictment, is subject to a defence right of appeal only, in accordance with the provisions of the Criminal Appeal Act 1968. Where a matter determined in the Crown Court is not a "matter relating to trial on indictment", the jurisdiction of the Divisional Court remains, and judicial review proceedings can be brought by the prosecution as well as the defence. 2.39 The expression "matters relating to trial on indictment" has been described as "extremely imprecise",[77] and interpreting it has not proved straightforward for the courts. Indeed for a short time it appeared that the judicial review procedure might be available to the prosecution to challenge a decision by a Crown Court judge to stay an indictment as an abuse of process. In R v Central Criminal Court, ex p Randle,[78] the Divisional Court concluded that a decision by a Crown Court judge that an indictment should be stayed as an abuse of process was not a matter relating to trial on indictment. There is at least one reported case, R v Norwich Crown Court, ex p Belsham,[79] in which the prosecution did challenge such a ruling by way of judicial review. However, in Re Ashton (R v Manchester Crown Court, ex p DPP)[80] the House of Lords overruled ex p Randle and ex p Belsham. 2.40 There remains a list of matters which have been found not to relate to trial on indictment, and in respect of which the prosecution may apply for judicial review. Some, however, were decided in part on the basis of ex p Randle and ex p Belsham, so must be seen as open to some doubt. Those within the ambit of judicial review include decisions to extend or refuse to extend custody time limits,[81] a decision on an application under the Criminal Justice Act 1987 to dismiss transfer charges,[82] and a listing decision which could affect the validity of the trial.[83] In R v Crown Court at Maidstone, ex p Harrow London Borough Council,[84] an insane defendant was committed for trial at the Crown Court on an indictment, but then was made the subject of an order which the judge had no jurisdiction to make. The order was not appealable to the Court of Appeal. The Divisional Court found that, although the subject of the application for judicial review was something that would ordinarily be characterised as a "matter relating to trial on indictment", the court nevertheless had jurisdiction where the Crown Court had no jurisdiction at all to act as it did.From magistrates' courts
Appeal to the Divisional Court
2.41 There are, in general, two routes to the Divisional Court from a magistrates' court: judicial review and an appeal by way of case stated. Most decisions of the magistrates may be the subject of judicial review at the instance of the prosecution, but there is an exception for an acquittal. Only where the "acquittal" was the result of a trial which was, in fact, a nullity will judicial review be available to the prosecution.[85] The appropriate form of appeal is generally the case stated procedure, particularly where the identification of the facts found by the magistrates is important.[86] Judicial review is available to the prosecution in respect of other decisions of the magistrates, such as whether or not to commit for trial or sentence, and decisions about mode of trial.[87] 2.42 An appeal by way of case stated may be used on the grounds that a decision is either "wrong in law" or "in excess of jurisdiction".[88] A person aggrieved by the decision, including the prosecutor, can apply to the magistrates to state a case. The case is a formal document adopted by the court, setting out the facts found and a question or questions for the Divisional Court. As well as pure points of law, the question may also ask whether, on the facts found, the magistrates came to the correct conclusion. Thus, although case stated does not provide an avenue to appeal against a finding of fact, the conclusions drawn from the facts can be challenged. The use of case stated to appeal against sentence is limited.[89] If it allows a prosecutor's appeal against an acquittal, the Divisional Court can either quash the acquittal and remit the case to the magistrates with a direction to convict and proceed to sentence, or convict and sentence the respondent itself. The court also has the power to order a rehearing before the same or a different bench.[90]Appeal against a grant of bail
2.43 A new right of appeal for the prosecution against a grant of bail was introduced in the Bail (Amendment) Act 1993. Appeal is to the Crown Court. The right relates to offences punishable by five years' imprisonment or more (or either the simple or aggravated forms of taking a conveyance without consent) where the prosecution has made representations to the magistrates against the grant of bail, and it is available only to specified public prosecutors.[91] Before the right can be exercised, the prosecution must give notice orally at the bail hearing itself, before the defendant is released.[92] The notice must then be confirmed in writing and served on the defendant within two hours after the end of the hearing. The appeal must take place within the 48 hours following the day of the notice (not the actual time of the notice).[93] Pending appeal, the defendant remains in custody.Customs and Excise cases
2.44 The prosecution has a general right of appeal to the Crown Court against "any decision" of the magistrates in proceedings for an offence under the Customs and Excise Management Act 1979 and other customs and excise Acts. This right of appeal is not confined to points of law and is without prejudice to the prosecution's right to apply for a case to be stated. It applies to any decision of the court, including those relating to mode of trial and sentence, as well as acquittals.[94]Appeals from appeals
2.45 In general, rights of further appeal are equally available to the prosecution as to the defence. This is so even where the original right of appeal is only available to the defendant. Only a defendant may appeal to the Crown Court against a conviction in the magistrates' court. The appeal is by way of re-hearing.[95] The prosecution may nevertheless appeal by way of case stated against the Crown Court's decision if the defendant's appeal is successful.[96] Similarly, only a defendant can appeal against the verdict of a trial on indictment,[97] but where the Court of Appeal quashes the conviction, the Crown has the same rights as the defence to appeal to the House of Lords.[98] Both sides have the same rights to appeal from the Divisional Court to the House of Lords.[99]Retrials
2.46 In this section we set out the various circumstances in which there may be a retrial under the present law. It will be seen that retrials, like prosecution appeals, are a familiar feature of English criminal procedure.Discharge of the jury
2.47 The discharge of the jury brings the trial to a halt, but is not equivalent to a verdict of not guilty.[100] The defendant can be tried again, without the need for any further formalities. A jury may be discharged during the ordinary course of the trial, or as a result of a failure to agree (by the necessary majority) on a verdict.Discharge during the course of the trial
2.48 A judge may discharge an individual juror, or the whole jury, before the jury has given a verdict, where it is necessary to do so.[101] Individual jurors may be discharged because of illness, other personal circumstances which make it impossible for them to continue,[102] misconduct or bias.[103] As long as nine jurors remain, the trial can continue.[104] If the number of jurors remaining falls below that number, they must be discharged and the trial brought to a halt. When misconduct or bias is alleged, the trial judge must investigate the allegation by questioning the individual juror concerned, and sometimes the jury as a whole.[105] Where, for instance, it is alleged that improper approaches have been made to a juror (such as offers of bribes, or intimidation), the judge will have to consider whether the trial can safely be continued if the individual juror involved in the approach is discharged. If the approach has been communicated to other jurors, so that they too may be "contaminated", the judge has a discretion to discharge the jury as a whole.[106] 2.49 There may also be circumstances affecting the whole jury which require it to be discharged. This may happen when inadmissible and prejudicial evidence is accidentally elicited. It commonly occurs where the previous convictions of the defendant become known.[107] Other irregularities may relate to the retirement of the jury, such as where the jury bailiffs retired with them,[108] or where some jurors attempted to contact the deceased victim by use of a ouija board in their hotel.[109] If such a matter comes to the attention of the judge, the jury as a whole may be discharged. If it is not revealed until after the verdict, the Court of Appeal may quash the conviction.[110] 2.50 A jury may have to be discharged at any time between being sworn and delivering its verdict.[111] In principle, it is possible for a retrial to follow virtually immediately after the discharge of the jury, but in practice there may be listing constraints.[112]Discharge as a result of a failure to agree
2.51 A jury is always told in the summing-up to come to a unanimous verdict.[113] If it has failed to do so within two hours and ten minutes, it can be told that it may now return a majority verdict.[114] It may also be given a direction explaining that there is a need for "discussion, argument and give and take" in the jury room,[115] but this direction should not be combined with the majority direction.[116] If the jury still fails to return a verdict after such time that it appears that it may be unable to do so, the judge should call the members of the jury back into court and ask them if there is any chance of reaching agreement. Depending on their answer, the judge may discharge them or give them more time. If they still fail to agree, they will be discharged.[117] The defendant may then be retried. It is usual for a defendant to be retried by a second jury where the first disagreed. The practice, however, is for the prosecution to offer no evidence if the second jury also fails to agree.[118]Retrials ordered by the Court of Appeal, Criminal Division
2.52 The Court of Appeal now has power to order a retrial whenever it allows an appeal against conviction, provided that "the interests of justice so require".[119] The appellant can only be retried for(1) the offence in respect of which the court has quashed the conviction;
(2) another offence of which the appellant could have been convicted on an indictment for that offence; or
(3) an offence which was put as an alternative to that of which the appellant was convicted, and in respect of which the jury was discharged from entering a verdict because of the conviction.[120]
If the retrial results in a conviction, the defendant cannot be given a more severe sentence than at the first trial, and time spent in prison following the initial conviction counts against the second sentence, as does time spent remanded in custody awaiting the retrial.[121]
2.53 The procedure is for the Court of Appeal to order a new indictment to be preferred. The appellant cannot, however, be arraigned on the new indictment more than two months after the order for a retrial was made, without the leave of the Court of Appeal. Once the two months have elapsed, the appellant can apply to the court for an order setting aside the order for a retrial, and directing the Crown Court to enter a verdict of not guilty. On such an application, the Court of Appeal can, alternatively, grant leave to arraign, but only if satisfied that the prosecution has acted with all due expedition, and there remains good and sufficient cause for a retrial despite the lapse of time. The same criteria apply to an application by the prosecution to arraign out of time.[122]Ü Þ
Note 1 By contrast with the relevant law of the ECHR, which is summarised in Part III below. [Back] Note 3 The Court of Appeal had directed a verdict of acquittal, having allowed an appeal against the defendant’s conviction for murder. [Back] Note 4 Connelly v DPP [1964] AC 1254, 1339–1340. Lord Reid (at p 1295) and Lord Pearce (at p 1368) agreed. The alternative view that the principle applied also where the offences were substantially the same ([1964] AC 1254 at p 1305, per Lord Morris of Borth-y-Gest) was not adopted by the majority. Lord Morris’s speech includes a detailed review of the English authorities over 400 years. [Back] Note 5 [1998] QB 356, 361, per Rose LJ. [Back] Note 6 [1998] QB 356, 360. [Back] Note 7 But it was held that the second prosecution should have been stayed as an abuse of process: see para 2.16 below. [Back] Note 8 [1964] AC 1254, 1340. Lord Morris’ view, that the new charge need only be substantially the same as the earlier one, is reflected in the statutory provisions applying the principle of double jeopardy to military law. For example, the Army Act 1955, s 134(1), as amended by the Armed Forces Act 1991, provides that in certain circumstances a person “shall not be liable in respect of the same or substantially the same offence to be tried by court-martial”. The amendment predates Beedie [1998] QB 356, where Lord Devlin’s analysis was preferred. [Back] Note 9 This requirement is satisfied if the court concerned was a foreign court of competent jurisdiction: Treacy v DPP [1971] AC 537, 562. [Back] Note 10 R v Kent JJ, ex p Machin [1952] 2 QB 355. The Divisional Court quashed M’s conviction and committal for sentence for the offences of larceny and obtaining credit by fraud because the correct procedure for determining mode of trial had not been complied with and so the magistrates had acted ultra vires. Lord Goddard CJ at p 361 expressed the hope that there would be no further proceedings, but said that the prosecution was entitled to recharge M as he had “never been technically in peril”. [Back] Note 11 West [1964] 1 QB 15. [Back] Note 12 R v Dorking JJ, ex p Harrington [1984] 1 AC 743. [Back] Note 13 Crane v DPP [1921] 2 AC 299. [Back] Note 14 Booth, Wood and Molland [1999] Crim LR 413. [Back] Note 15 Crane v DPP [1921] 2 AC 299. [Back] Note 16 R v Manchester City Magistrates, ex p Snelson [1977] 1 WLR 911. [Back] Note 17 R v Grays JJ, ex p Low [1990] QB 54, especially at p 59, per Nolan J. [Back] Note 18 R v Bennett and Bond, ex p Bennet (1908) 72 JP 362. [Back] Note 19 Dabhade [1993] QB 329. [Back] Note 20 Rose [1982] AC 822. [Back] Note 21 See paras 3.2 and 3.10 below. [Back] Note 22 See paras 2.29 – 2.53 below. [Back] Note 23 Criminal Procedure and Investigations Act 1996, ss 54–57. [Back] Note 24 This means the offence of perverting the course of justice, the offence under the Criminal Justice and Public Order Act 1994, s 51(1) (intimidation etc of witnesses, juries and others) or an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under the Perjury Act 1911, s 1: Criminal Procedure and Investigations Act 1996, s 54(6). [Back] Note 25 Criminal Procedure and Investigations Act 1996, s 54(1). [Back] Note 26 Ibid, s 54(2), (3) and (5). [Back] Note 28 [1964] AC 1254. [Back] Note 29 See the distinction drawn in Beckford [1996] 1 Cr App R 94. [Back] Note 30 McNamara and McNamara [1998] Crim LR 278. [Back] Note 31 Reade unreported, 15 October 1993. [Back] Note 32 Bloomfield [1997] 1 Cr App R 135; Townsend, Dearsley and Bretscher [1997] 2 Cr App R 540. [Back] Note 33 R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42; Mullen v Conoco Ltd [1998] QB 382. [Back] Note 34 R v Crown Court at Norwich, ex p Belsham (1992) 94 Cr App R 382; Tan v Cameron [1992] 2 AC 205, PC; but see R v Telford JJ, ex p Badhan [1991] 2 QB 78. [Back] Note 35 Hui Chi-Ming [1992] 1 AC 34, 57. [Back] Note 37 This casts doubt on the Divisional Court’s dictum in R v Forest of Dean JJ, ex p Farley [1990] Crim LR 568, that there is a discretion to stay proceedings if to proceed after conviction or acquittal on a lesser charge would be oppressive or prejudicial, but that a stay will rarely be appropriate. [Back] Note 38 [1964] AC 1254, 1360. He noted that, if the defence wished for a single trial of the two indictments, it could apply for an order in the form made in Smith [1958] 1 All ER 475. [Back] Note 39 Sir Brian Neill (President), Sir John Waite JA and Sir Iain Glidewell JA, who gave the judgment of the court. [Back] Note 40 Criminal Appeal No 4 of 1998, judgment given 19 March 1999; unreported. [Back] Note 41 See para 2.21 below. [Back] Note 42 [1998] QB 356; see para 2.16 above. [Back] Note 43 (1861) 1 B & S 688; 121 ER 170. [Back] Note 44 (1861) 1 B & S 688, 696. [Back] Note 45 [1998] QB 356, 366e–f. [Back] Note 46 Defence counsel cited R v Forest of Dean JJ, ex p Farley [1990] RTR 228, where Neill LJ at p 239 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” (italics supplied). [Back] Note 47 De Salvi (1857) 10 Cox CC 481; Thomas [1950] 1 KB 26. A somewhat analogous recent case isLaw Society v Gilbert, The Times 12 January 2001, where it was held not to be an abuse of process for the Law Society to bring further disciplinary proceedings against a solicitor convicted of dishonesty offences who had already been disciplined in respect of the same conduct. The court thought it important that he had not yet been convicted at the time of the first proceedings. [Back] Note 48 Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458. [Back] Note 49 On which we expect to publish our final recommendations later this year. See Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996) Consultation Paper No 141. [Back] Note 50 There is no question of the defendant’s being convicted of the first offence. [Back] Note 51 [2000] 2 AC 483. [Back] Note 52 Ibid, pp 505–506. [Back] Note 54 [1950] AC 458, 479. [Back] Note 55 [2000] 2 AC 483, 487–488. [Back] Note 56 Report of the Fraud Trials Committee (1986), chaired by Lord Roskill. [Back] Note 57 Criminal Justice Act 1987, ss 4–10. The power to hold a preparatory hearing is not confined to transferred cases. [Back] Note 58 Criminal Procedure and Investigations Act 1996, Part III. [Back] Note 59 Criminal Justice Act 1987, s 8; Criminal Procedure and Investigations Act 1996, s 30. [Back] Note 60 Criminal Justice Act 1987, s 7(1); Criminal Procedure and Investigations Act 1996, s 29(2). [Back] Note 61 Criminal Justice Act 1987, s 7(1). [Back] Note 62 Criminal Procedure and Investigations Act 1996, s 29(1). [Back] Note 63 Criminal Justice Act 1987, s 9(3)(b) and (c); Criminal Procedure and Investigations Act 1996, s 31(3)(a) and (b). In the 1987 Act there is also a specific power to consider a question arising under the Criminal Justice Act 1993, which relates to the relevance of external law to certain charges of conspiracy, attempt and incitement: s 9(3)(aa). [Back] Note 64 Criminal Justice Act 1987, s 9(11); Criminal Procedure and Investigations Act 1996, s 35(1). See also the Criminal Justice Act 1987 (Preparatory Hearings) (Interlocutory Appeals) Rules 1988 (SI 1988 No 1700) and the Criminal Procedure and Investigations Act 1996 (Preparatory Hearings) (Interlocutory Appeals) Rules 1997 (SI 1997 No 1053). [Back] Note 65 [1997] 1 Cr App R 421, 430. The defendant had sought to appeal against a refusal to quash an amended indictment in the course of a preparatory hearing. [Back] Note 66 Smithson [1994] 1 WLR 1052. [Back] Note 67 See para 2.33 above. [Back] Note 68 It would instead be a trial ruling (albeit an unusual one in that there will not yet be a jury) as the trial commences at the same time as the preparatory hearing: Criminal Justice Act 1987, s 8(1); Criminal Procedure and Investigations Act 1996, s 30(a). [Back] Note 69 It is possible that they could form the basis of an appeal against conviction. [Back] Note 70 Hedworth [1997] 1 Cr App R 421, 425–433. [Back] Note 71 Ibid. See also the discussion of Moore (unreported, 4 February 1991) in Alun Jones QC, “The Decline and Fall of the Preparatory Hearing” [1996] Crim LR 460, 463. [Back] Note 72 SeeArchbold 2001, para 2–119, and cases cited therein. [Back] Note 73 Criminal Justice Act 1988, s 35(3). [Back] Note 74 Criminal Justice Act 1988 (Reviews of Sentencing) Order 1994 (SI 1994 No 119); Criminal Justice Act 1988 (Reviews of Sentencing) Order 1995 (SI 1995 No 10); Criminal Justice Act 1988 (Reviews of Sentencing) Order 2000 (SI 2000 No 1924). [Back] Note 75 Figures provided by the Legal Secretariat to the Law Officers. The figures for references made are those for all cases referred, including those subsequently withdrawn and those in respect of which leave was not granted. The latest figures available for 1999 are that, of 78 references so far heard, the sentence was increased in 55 cases (70.5%). [Back] Note 76 Supreme Court Act 1981, ss 29(3), 15(1), and 53(2). Appeal to the Court of Appeal is generally available only to a defendant, and against a conviction or equivalent final verdict. [Back] Note 77 R v Manchester Crown Court, ex p DPP [1993] 1 WLR 1524, 1528, per Lord Browne-Wilkinson. [Back] Note 78 [1991] 1 WLR 1087. [Back] Note 79 [1992] 1 WLR 54. [Back] Note 81 See, eg, R v Manchester Crown Court, ex p McDonald [1999] 1 WLR 841. [Back] Note 82 R v Central Criminal Court, ex p Director of Serious Fraud Office [1993] 1 WLR 949. [Back] Note 83 R v Southwark Crown Court, ex p Customs and Excise Commissioners [1993] 1 WLR 764. For administrative reasons, the trial in a serious fraud case was listed before a judge who had not conducted the preparatory hearing. It was possible, the Divisional Court found, that such a decision could render the trial a nullity (as it would were the trial judge to change during the course of a normal trial on indictment). [Back] Note 85 R v Dorking JJ, ex p Harrington [1984] AC 743. In that case, the House of Lords held that the prosecution could succeed where the magistrates had dismissed the information without having heard any evidence, in breach of their statutory duty to determine the case after hearing evidence (Magistrates’ Courts Act 1981, s 9(2)). [Back] Note 86 R v Morpeth Ward JJ, ex p Ward (1992) 95 Cr App R 215. [Back] Note 87 Appeals against a decision of the magistrates’ court not to extend a custody time limit are to the Crown Court: Prosecution of Offences Act 1985, s 22(8). [Back] Note 88 Magistrates’ Courts Act 1980, s 111. It applies only to a final determination of the case: Streames v Copping [1985] QB 920, Loade v DPP [1990] 1 QB 1052. [Back] Note 89 A sentence may be appealed on the ground that it is wrong in law, but not that it is simply too severe (or too lenient), unless it is so far outside the normal discretionary limits for the offence that the Divisional Court can conclude that it could only have been arrived at as a result of some error of law. Appeals by way of case stated against sentence generally are rare, although there have been a substantial number of prosecution appeals against sentences in driving cases. [Back] Note 90 Griffiths v Jenkins [1992] 2 AC 76. [Back] Note 91 Bail (Amendment) Act 1993, s 1. The prosecutors are the Crown Prosecution Service (s 1(2)(a)), the Serious Fraud Office, the Department of Trade and Industry, Customs and Excise, the Department of Social Security, the Post Office and the Inland Revenue (s 1(2)(b) and Bail (Amendment) Act 1993 (Prescription of Prosecuting Authorities) Order 1994, SI 1994 No 1438). [Back] Note 92 This requirement was satisfied when notice was given to the clerk five minutes after the bench rose, before the defendant had been released: R v Isleworth Crown Court, ex p Clarke [1998] 1 Cr App R 257. [Back] Note 93 R v Middlesex Crown Court, ex p Okoli [2000] Crim LR 921. [Back] Note 94 Customs and Excise Management Act 1979, ss 147(3) and 1(1); R v Customs and Excise Commissioners, ex p Wagstaff (1998) 162 JP 186; R v Customs and Excise Commissioners, ex p Brunt (1998) 163 JP 161. [Back] Note 95 Magistrates’ Courts Act 1980, s 108. [Back] Note 96 Supreme Court Act 1981, s 28. [Back] Note 97 Criminal Appeal Act 1968, s 2. [Back] Note 98 That is, either party can apply to the Court of Appeal to certify a point of general public importance and to grant leave to appeal. If leave is refused (as it usually is), the party applies to the House of Lords for leave: Criminal Appeal Act 1968, s 33. [Back] Note 99 Appeal is direct to the House of Lords, rather than to the Court of Appeal, “in a criminal cause or matter”: Administration of Justice Act 1960, s 1(a). [Back] Note 100 Davison (1860) 2 F & F 250, 175 ER 1046; Randall [1960] Crim LR 435. [Back] Note 101 Winsor (1866) LR 1 QB 289, 390. [Back] Note 102 For instance, in Richardson [1979] 1 WLR 1316, a juror was discharged when her husband had died the night before. [Back] Note 103 The common law test to be applied by the tribunal (the judge or, on appeal, the Court of Appeal), having regard to the relevant circumstances, is whether there is a real danger of bias on the part of the juror concerned, in the sense that that juror might unfairly regard with favour or disfavour the defence or the prosecution: Gough [1993] AC 646. There is now also a need to take account of the jurisprudence under ECHR, Art 6 which emphasises the need for objective impartiality; seeArchbold 2001, para 4–256. [Back] Note 104 Juries Act 1974, s 16. [Back] Note 105 Blackwell [1995] 2 Cr App R 625. [Back] Note 106 See Putnam (1991) 93 Cr App R 281 for the way in which the judge should approach such a decision. [Back] Note 107 For an example of a recent case, see Barraclough [2000] Crim LR 324. [Back] Note 108 McNeil, The Times 24 June 1967. [Back] Note 109 Young [1995] QB 324. [Back] Note 110 The general rule is that the jury no longer functions after all its verdicts are given. There are some exceptions, for instance to correct technical errors in the giving of verdicts: Maloney [1996] 2 Cr App R 303. [Back] Note 111 In Quinn [1996] Crim LR 516, for instance, a juror recognised an associate of the defendant within minutes of being sworn. The judge initially chose to discharge the jury as a whole so as to be able to use another available potential juror to make up a full jury of twelve rather than continue with eleven. The judge went back on the decision once it became clear that there were no “spare” jurors available. (The appeal was dismissed.) [Back] Note 112 The Court of Appeal has recently given guidance to Crown Courts on when it is necessary to adjourn a retrial for a brief period, rather than continue immediately, to avoid the danger of the discharged jurors meeting and “contaminating” the new jury in smaller court centres: Barraclough [2000] Crim LR 324. [Back] Note 113 Practice Direction (Crime: Majority Verdicts) [1967] 1 WLR 1198. See also the Judicial Studies Board’s specimen direction, available on its website (http://jsboard.co.uk). [Back] Note 114 Juries Act 1974, s 11. Ten jurors must agree where there are eleven or twelve jurors, nine where there are ten jurors. Two hours is the statutory limit: ten minutes was added by Practice Direction (Majority Verdict) [1970] 1 WLR 916 to ensure that a full two hours was spent actually deliberating in the retiring room. The terms of the direction allowing the jury to reach a majority verdict are set out in Practice Direction (Crime: Majority Verdicts) [1967] 1 WLR 1198. [Back] Note 115 Watson [1988] QB 690. [Back] Note 116 Buono (1992) 95 Cr App R 338. [Back] Note 117 Rose [1982] AC 822. [Back] Note 118 Archbold 2001, para 4–440. [Back] Note 119 Criminal Appeal Act 1968, s 7. There are limits on the offences for which the defendant may be retried. If the defendant is convicted, the sentence must not be of greater severity than that passed following the original trial: s 8(4), Sched 2, para 2(1). [Back] Note 120 Criminal Appeal Act 1968, s 7(2). [Back]
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