Defences
| Pages | 481-504 |
| Author | Pauline M. Callow |
Chapter 9
Defences
1. AUTREFOIS ACQUIT
Broadbent v High
[1985] RTR 359, 25 October 1984, QBD (DC)
Where the prosecution elected to proceed on the basis of one of two informations,
the doctrines of autrefois acquit and res judicata did not arise.
A motor cyclist had been convicted, under s 6(1), Road Traffic Act 1972 as
substituted by s 25 and Sch 8, Transport Act 1981, of driving with excess alcohol.
Breath analysis produced a reading of 40 µg alcohol in 100 ml breath; the motor
cyclist elected, under s 8(6), Road Traffic Act 1972 (lower breath reading no more
than 50 µg alcohol in 100 ml breath – since re-enacted as s 8(2), Road Traffic Act
1988 and now repealed; see page v), to provide a specimen of blood instead, which
was found to contain not less than 83 mg alcohol in 100 ml blood. The information
was originally in error in alleging that he had driven having consumed so much
alcohol that the “proportion in his blood exceeded the prescribed limit, as
ascertained by a specimen of breath …”. Rather than amend the information, the
prosecution had issued a new information, which correctly referred to blood. Before
the trial began, the defendant put the prosecution to an election as to which
information should be proceeded on; the prosecutor elected the second, and the
justices dismissed the first. The motor cyclist appealed against conviction.
QUESTION(S) FOR THE COURT: Whether, in the circumstances, the second
information should properly have been considered as res judicata and whether
the justices were correct in allowing the prosecutor to proceed on the second
information when no evidence had been offered on the original information.
HELD: “[In respect of the motorist’s argument of autrefois acquit] Where, as
here, there has been the kind of error, … by the prosecution and which has led to
the justices quite properly – especially at the invitation of the defence – to put the
prosecution to election as to which of two informations it would proceed on, the
doctrine of autrefois acquit has in my judgment no place …
“The doctrine of res judicata has no application to these circumstances as there
had been no trial on the merits … The justices were certainly correct … in
allowing the prosecutor to proceed at his election on the second information
having decided not to proceed on the first.”
Appeal dismissed.
482 9. Defences
DPP v Porthouse
[1989] RTR 177, [1989] Crim LR 224, 20 October 1988, QBD (DC)
Where an information was so faulty in form and content that the defendant could
never have been in jeopardy on it, its dismissal could not give rise to a defence of
autrefois acquit on a second, corrected, information.
An information against the defendant alleged that he was “… in charge of a motor
vehicle … in a public place … and was unfit to drive having consumed so much
alcohol that the proportion in his breath exceeded the prescribed limit, contrary
to section 5 of the Road Traffic Act 1972”. When the matter came before the
justices, the prosecutor substituted for the defective information an information
that the defendant was “in charge of a motor vehicle … after consuming so much
alcohol that the proportion of it in his breath exceeded the prescribed limit,
contrary to section 6(1) of the Road Traffic Act 1972”. The defendant had already
pleaded not guilty to the first information, and pleaded not guilty to the second.
The prosecutor elected to proceed on the second information and offered no
evidence on the first, which the justices dismissed. It was submitted on behalf of
the defendant that the second information should be dismissed on the principle
of autrefois acquit, and the justices did so. The prosecutor appealed.
QUESTION(S) FOR THE COURT: (1) Whether the justices were entitled to find
that the principle of autrefois acquit was applicable to the second information;
(2) whether they were right to dismiss the second information before evidence
had been heard in relation to either information.
HELD: “As an actual plea of autrefois acquit or autrefois convict can only be
raised at a trial on indictment, it cannot be entered in a magistrates’ court, but the
same principles apply. More usually the issue in such cases is whether the offence
charged on the second occasion ‘is the same or is in effect or is substantially the
same as’ the offence charged on the first occasion … [Here], however, the real
issue is whether the defendant was on risk in relation to the first information and
whether there was a sufficient adjudication upon it by the justices to bring the
principle into operation.
“The first information … was clearly defective. It referred to section 5 of the Road
Traffic Act 1972 but the particulars combined sections 5 and 6 … [it] was clearly
objectionable. If a conviction had been recorded upon it, that conviction would
have been quashed.
“… the first information was so faulty in form and content that the defendant
could never have been in jeopardy upon it and thus its dismissal could not give
rise to any defence of autrefois acquit on the second information.”
The answers to the questions were “no”. Appeal allowed.
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