Connelly v DPP

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Devlin,Lord Pearce
Judgment Date21 Apr 1964
Judgment citation (vLex)[1964] UKHL J0421-2

[1964] UKHL J0421-2

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Devlin

Lord Pearce

Connelly
and
Director of Public Prosecutions

Upon Report from the Appellate Committee, to whom was referred the Cause Connelly against Director of Public Prosecutions (on Appeal from the Court of Criminal Appeal), that the Committee had heard Counsel, as well on Tuesday the 10th, Wednesday the 11th, Thursday the 12th, Monday the 16th, Tuesday the 17th, Wednesday the 18th, and Thursday the 19th, days of December last, as on Wednesday the 15th, Thursday the 16th and Monday the 20th, days of January last, upon the Petition and Appeal of Charles Connelly, of 243 Walworth Road, London, S.E.17, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal, of the 30th of September 1963, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal, of the 30th day of September 1963 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Reid

My Lords,

1

The question in this case is essentially simple. The Appellant took part in an armed robbery. In the course of that robbery one of the robbers shot and killed a man. Clearly those facts were capable of giving rise to two charges against the Appellant—murder and robbery. He was tried and convicted of murder, but by reason of a misdirection this conviction was quashed by the Court of Criminal Appeal. Ought he then to have been tried afresh on the charge of armed robbery?

2

If it were proper to be guided by the view of public policy which presently commends itself to Parliament I would think not. Ever since the passing of the Criminal Appeal Act, 1908, Parliament has persistently refused to permit a retrial in respect of the same offence after a verdict of guilty has been quashed on any ground by the Court of Criminal Appeal. Refusal to allow a new trial has always been put on the ground of fairness to the accused and I cannot see why, if it is unfair to allow a retrial for the same offence, it is fair to allow a fresh trial on the same facts merely because the offence now charged is different.

3

But I must take the law as I find it. The numerous authorities marshalled by my noble and learned friend, Lord Morris of Borth-y-Gest, show that many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope. It may not be possible to reconcile all the decisions, but I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial. Distinctions between cases where a man can be tried a second time and where he cannot may seem technical but they seem to me to be so well established by authority that it would be wrong to disregard or overrule them even if I desired to do so.

4

The difficulty in this case arises from the practice, based on R. v. Jones [1918] 1 K.B. 416, that a second charge is never combined in one indictment with a charge of murder. I would think that the Indictments Act, 1915, was designed to ensure that all charges arising out of the same facts are combined in one indictment and thus to prevent there being a series of indictments and trials on substantially the same facts. I have had an opportunity of reading the speeches of my noble and learned friends, Lord Devlin and Lord Pearce, and I agree with them. I think that the present practice is inconvenient and ought to be changed. I realise that there are cases where, for one reason or another, it would be unfair to the accused to combine certain charges in one indictment. So the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to prefer. But in a case where it would have been improper to combine the charges in that way, or where the accused has accepted without demur the prosecutor's failure so to combine the charges, a second indictment is allowable. That will avoid any general question as to the extent of the discretion of the Court to prevent a trial from taking place. But I think there must always be a residual discretion to prevent anything which savours of abuse of process.

5

As regards the present appeal I think that the course which this case has taken was in accord with existing practice, and I would therefore dismiss the appeal.

Lord Morris of Borth-y-Gest

My Lords,

6

There were two indictments against the Appellant. The first charged him (together with three others) with the murder of a man named Hurden on the 17th November, 1962. The second charged him (together with the three others) with robbery with aggravation contrary to section 23 (1) ( a) of the Larceny Act, 1916. The particulars of the offence charged in the second indictment alleged that on the 17th November, 1962, the accused, being armed with offensive weapons, to wit firearms, and being together with others robbed a man named Davis of a sum of over £519. By reason of a rule of practice (see R. v. Jones [1918] 1 K.B. 416) the charges could not both have been contained in one indictment. The Appellant pleaded Not Guilty to both. The two indictments could not be tried together. The first was taken first. The Appellant's defence (at a trial at the Central Criminal Court) was that he was not guilty for the reason that he had not been present at the scene of the crime. He made an alternative submission that if he was present he was still not guilty of murder. The submission was put by learned Counsel to the jury in the following words:—

"—nevertheless, members of the jury, if you come to the conclusion that Connelly was there, you still have to decide whether he is guilty of murder, and my submission to you is this. There is no evidence that any of the men in the office intended to do more than frighten people with unloaded guns. There is no evidence that the guns in the office were loaded; there is no evidence that any of the men in the office knew that the man outside had a loaded gun or intended to use it, and unless the prosecution satisfy you that the men in the office either were themselves prepared to use such force as would cause grievous bodily harm or knew that their confrere outside was prepared to do the same kind of thing, then the prosecution would not have established the necessary ingredients of murder. They would, of course, have established the necessary ingredients for robbery and quite clearly, on the second indictment, if Connelly came up again and the jury had found that he was present, then he would go down on the second indictment."

7

The jury found the Appellant guilty of murder. The learned judge said that the second indictment should remain on the file and be marked as not to be proceeded with unless the court or the Court of Criminal Appeal gave leave.

8

The Appellant appealed to the Court of Criminal Appeal. On the ground that there had been misdirection in that part of the summing-up which dealt with the Appellant's defence of an alibi and because the Court did not feel it possible to apply the proviso, the appeal was (on the 5th April, 1963) allowed, and the Appellant's conviction of murder was set aside. The question of the trial of the second indictment then arose. The Court of Criminal Appeal recognised that a plea of autrefois acquit could not then be argued and acceded to an application made by the prosecution for leave to prefer the second indictment. It has not been suggested that this circumstance would prevent the success of a later plea of autrefois acquit if the plea could be justified.

9

The Appellant appeared again at the Central Criminal Court on the 10th May, 1963. He pleaded autrefois acquit. A jury was sworn to try that issue. The learned judge told the jury about the proceedings in the Court of Criminal Appeal and of the resulting acquittal of murder, and in his direction to them said— "The question that you have to decide is a short and simple one; has this man Connelly proved that he has already been tried and acquitted of the same felony or offence, or of substantially the same offence, or has he already been tried and acquitted on an indictment on which he could have been convicted of the same or substantially the same offence." Pointing out that the murder which was alleged in the first indictment took place in the course of the robbery which was alleged in the second indictment he asked the jury whether it could be said that the murder of Hurden on the 17th November was the same or substantially or practically the same as robbery with aggravation of a sum of money from Davies. He told the jury that the answer must be "no". He directed them that on the indictment for murdering Hurden the Appellant could not have been convicted of robbing Davies. The jury on his direction found that the Appellant had not previously been acquitted of the felony for which he was indicted in the second indictment.

10

My Lords, for reasons which I will elaborate, I can find no error in the direction of the learned Judge. The Appellant could not on the first...

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2 books & journal articles
  • Abuse of Process: Time for Change?
    • United Kingdom
    • Dundee Student Law Review Nbr. II, January 2015
    • 1 January 2015
    ...are not conflicting judgments in the same matter. Suppose that in the present case the appellant had first been acquitted of robbery 7[1964] AC 1254 (HL). 8(1861) 1 B & S 688, 688. 9Antoine (n. 3) [21]. Dundee Student Law Review, Vol. II, No. 2 and then convicted of murder. Inevitably d......
  • Inherent jurisdiction and inherent powers of irish courts
    • Ireland
    • Irish Judicial Studies Journal Nbr. 2-9, July 2009
    • 1 July 2009
    ...34 of the Constitution, which directs that “justice shall be _____________________________________________________ 81Connelly v. D.P.P. [1964] A.C. 1254, at 1301 (CA and HL). 82 R. v. Norwich Crown Court; Ex p Belsham, [1992] 1 W.L.R. 54, at 66 (QBD). 83Joseph, Constitutional and Administra......

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