Defences
| Author | Pauline M Callow |
| Pages | 450-469 |
CHAPTER 10: DEFENCES
Chapter 10
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) of the Act, 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.
Autrefois Acquit
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.
R v Truro & South Powder JJ ex p McCullagh
[1991] RTR 374, 18 June 1990, QBD (DC)
Where the defendant established the defence of no likelihood of driving and was acquitted of being in charge with excess alcohol, but was later charged with driving with excess alcohol at an earlier time, the acquittal on the first matter did not necessarily lead to acquittal on the second, and the defence of autrefois acquit was not available.
A motorist had been acquitted of being in charge with excess alcohol, contrary to s 6(1)(a), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981; he had established the statutory defence under s 6(2),
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CHAPTER 10: DEFENCES
Road Traffic Act 1972 as likewise substituted, that there was no likelihood of his driving while over the limit. The police then found witnesses who could testify that the motorist had been driving on the occasion in question, and charged him with driving with excess alcohol, contrary to s 6(1)(a), Road Traffic Act 1972 as likewise substituted. The motorist pleaded autrefois acquit, which was rejected by the justices.!
The motorist sought, by way of judicial review, an order prohibiting the justices from proceeding with hearing the summons.
Ground(s) for appeal: (a) The essential ingredients of the charge of driving with excess alcohol would have been sufficient to have convicted on the first charge of being in charge with excess alcohol; the justices, therefore, should have exercised their general and inherent power to prevent the abuse of their process, the principle underlying the plea of autrefois acquit being available to the applicant; (b) the second information was laid two days before the expiration of the six months’ limitation period; that delay was unconscionable and the justices should have exercised their discretion to stay the second summons; (c) the second summons was founded on the same facts as the first, and the justices should have exercised their discretion to stay it.
Held: “The plea of autrefois acquit or the analogous defence available in the magistrates’ court has been well known to the common law for many years … The test … is whether the acquittal on the first charge, that is of being in charge of a motor vehicle, necessarily involved an acquittal on the second charge, that is of driving a motor vehicle with excess alcohol in the body. It is quite plain that of course it did not … first, because the applicant was acquitted on the first charge on the ground, not that the justices were not satisfied that he was in charge of the motor vehicle, but by reference to the statutory defence; and, secondly, because the evidence in relation to the first charge related to a later time than the period during which it is alleged that the applicant was driving … the defence of autrefois acquit was not available …”
Application dismissed.
Williams (Alan Davies) v DPP
[1991] RTR 214, 20 March 1991, QBD (DC)
On the facts of this case (error in the information; amended information issued), the defendant was never in jeopardy on the first information and the defence of autrefois acquit did not therefore arise. In the requirement to serve the certificate of blood analysis not later than seven days before the hearing, “hearing” means the hearing at which the evidence is to be given, not a preliminary hearing.
A motorist had been charged with driving with excess alcohol, contrary to s 6(1)(a), Road Traffic Act 1972 as substituted by s 25 and Sch 8, Transport Act 1981. At the police station, breath analysis revealed less than 50 µg alcohol in 100 ml breath and the motorist elected to provide a blood specimen instead under s 8(6), Road Traffic Act 1972 as likewise substituted. The prosecutor later served a certificate of the positive blood analysis, but the summons referred to excess alcohol in breath. At the hearing, before a plea was taken, the motorist took as a preliminary point that the breath analysis could not be used since a blood specimen had been provided instead. That was accepted by the prosecutor, who applied for an adjournment so that the summons could be
Autrefois Acquit
amended. The adjournment was refused and the magistrates dismissed the charge.
The prosecution later laid a fresh information alleging excess blood alcohol; the summons and a certificate of the blood analysis were served on the motorist three days before he was required to appear before the court. At that hearing, he pleaded not guilty and the matter was adjourned for trial for some six weeks. At the trial, the motorist submitted that the certificate had not been properly served, s 10(3), Road Traffic Act 1972 requiring that the certificate be served not later than seven days before the hearing; and pleaded autrefois acquit on the basis that the original summons had been dismissed.
The magistrates rejected these submissions and convicted the motorist. He appealed.
Question(s) for the Court: Whether the words ‘not later than seven days before the hearing’ in s 10(5), Road Traffic Act 1972 referred to a preliminary hearing, as was the...
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