DPP v Alexander
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STANLEY BURNTON,MR JUSTICE TREACY,MR JUSTICE NICOL |
| Judgment Date | 27 July 2010 |
| Neutral Citation | [2010] EWHC 2266 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2010 |
| Docket Number | CO/5032/2010 |
[2010] EWHC 2266 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Stanley Burnton
Mr Justice Treacy
Mr Justice Nicol
CO/5032/2010
Ms Anne Phillips (instructed by CPS) appeared on behalf of the Appellant
Ms Alison Wilkes (instructed by Thomas Boyd Whyte) appeared on behalf of the Respondent
(As approved)
: This is an appeal by way of case stated from a decision of the Justices sitting in the County of Kent acting in and for the Local Justice Area of North Kent, in respect of their decision at a Magistrates’ Court sitting at Medway Magistrates’ Court on 11 December 2009. The case concerned a Mr Christopher Alexander, whom the Crown Prosecution Service were seeking to prosecute for driving without due care and attention.
The facts giving rise to the case stated are concisely set out in the case. On 6 August 2009, Kent police laid an information against the respondent specifying the following offence. On 29 May 2009 at Strood, Rochester in Kent the respondent drove a mechanically propelled vehicle on a road, namely Watling Street, Strood, without due care and attention contrary to section 3 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. A summons in respect of that offence had been duly issued. The case stated gives some information about various adjournments, and proceeds from paragraph 5 as follows:
“On 11th December 2009 we heard the abuse of process argument made on behalf of the respondent and found the following:
(a) On 29 May 2009 the respondent was said to have held a Tara Baker, after she had got into his car to speak to him, against her will in his car by driving his car with her in it for about two miles and refusing to stop and let her out.
(b) During the journey the respondent's car was pursued by the car of the boyfriend of Tara Baker, a Ben Collins.
(c) During that pursuit there was a collision between the car driven by the respondent and that being driven by Mr Collins.
(d) the appellant allege[s] that the collision was caused by the respondent driving without due care and attention.
(e) On 11th July 2009 the respondent was given a formal caution for false imprisonment in relation to his actions in driving his motor vehicle with Tara Baker in it and refusing to stop and let her out.
(f) On 6 August 2009 an information was laid against the respondent alleging that he drove his vehicle without due care and attention.”
On the basis of those facts the magistrates addressed the issue which was raised on behalf of the defendant (now the respondent) that he was entitled to rely on the defence of autrefois convict. In addition, the proceedings against him constituted an abuse of the process because the prosecution had administered and he had accepted and given and received a caution in respect of the offence of false imprisonment. The offences of false imprisonment and the driving without due care and attention during the journey in which he had been pursued by the car driven by Ben Collins related to the same incident. It was incumbent on the prosecution to decide how to proceed in respect of all charges arising out of that incident. They having decided to proceed by way of caution in respect of false imprisonment, it was unfair and an abuse of the process for him subsequently to be prosecuted for the offence of driving without due care and attention. That was the submission made on behalf of Mr Alexander.
The submission made on behalf of the CPS was effectively that the offences in question, namely driving without due care and attention and false imprisonment, were of a totally different kind, that although broadly they may be said to have arisen out of the same facts or series of facts, or the same incident, the facts constituting the offences were of totally different kinds, and there was no unfairness in proceeding with the driving offence even though the offence of false imprisonment had been dealt with by way of caution, and therefore the abuse of process submission should be rejected. In addition, the defence of autrefois convict was inapplicable.
The magistrates accepted the submissions made on behalf of Mr Alexander. They held that he could rely on the defence of autrefois convict, and in addition they held that it was an abuse of process to proceed with the prosecution, but they stated the following questions for the opinion of this court:
“(1) Were we wrong in law in finding that the principle of autrefois convict applied to an offence of driving without due care and attention on the basis that it arose from the same set of circumstances as an offence of false imprisonment?
“(2) Were we wrong in law in finding that the principle of autrefois convict applied on the basis that the defendant had received a police caution for the offence of false imprisonment?
(3) Were we wrong in law to find that the prosecution for driving without due care and attention was inappropriate and amounted to an abuse of process sufficient to dismiss the information?”
Before us it is common ground that the defence of autrefois convict, or indeed autrefois acquit, has no application where what has occurred is a caution. A caution is not a conviction for the purposes of those defences, notwithstanding that a caution will only be administered if the accused person admits his guilt. The principles of autrefois convict and autrefois acquit are applicable only where there has been a finding by a court of guilt or innocence. They have no application to an extra-judicial procedure, such as the administration of a simple caution.
The issue that remains, therefore, is whether this prosecution for driving without due care and attention was and remains an abuse of the process of the court. If it was and is, the magistrates were right to decide as they did. If it was not, then the decision must be quashed and the prosecution remitted to them for them to find whether or not Mr Alexander was in fact guilty of driving without due care and attention.
In my judgment, the doctrine of abuse of process is to be narrowly confined. It is only in very special circumstances that a defendant who would otherwise receive a fair trial is entitled to avoid his trial by showing that his prosecution is indeed an abuse of the process of the court.
As I have already said, it is clear and common ground that a caution is not a conviction for the purposes of the defence of autrefois acquit, or for that matter autrefois acquit. Where, however, criminal conduct has been the subject of an agreed caution, in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court. Information or evidence obtained subsequent to caution, such as details of injury to a victim significantly exceeding what had previously been known would generally constitute a good reason: Gore and Maher [2009] EWCA Crim 1424.
In the present case, however, there were important differences between the offence that was the subject of the caution and the offence subsequently prosecuted. The conduct of the defendant was different: in the one case, detention of Tara Baker; in the latter, the manner of his driving. Thus the offences were totally different. So were the facts necessary to establish guilt. In the case of the detention of Tara Baker, all that was necessary was that she had been detained during the journey against her will. In the case of the driving without due care and attention, while the presence of Tara Baker against her will in the car might be an explanation for careless driving, it was not a necessary part of the offence. What was necessary to prove was that the defendant had driven without due care and attention.
The modes of trial prescribed are different: in the case of false imprisonment, on indictment; in the case of the offence prosecuted, that is to say driving without due care and attention, summary trial of an offence that cannot be tried by itself on indictment. It may be that if section 51(1) of the Crime and Disorder Act 1998 is still in force, the two offences could have been tried together in the Crown Court, but the fact remains that they are very different offences, and the limitations in sub-section (11) on the trial of offences triable summarily only and triable on indictment only together themselves indicate that, in certain circumstances, there will have to be separate trials before different courts of offences arising out of the same broad incident or series of incidents.
Moreover, there were different victims in these cases. In the offence subject to the caution, the victim and the only victim was Tara Baker; in the case of the driving offence, in addition to Tara Baker, Ben Collins and members of the public liable to be endangered by the respondent's driving, if indeed it was careless. The sanctions applicable on conviction differ in important respects. The imposition of points on a driving licence and disqualification are not available on conviction for false imprisonment. Careless driving is punishable only by a fine. A conviction for false imprisonment may lead to imprisonment.
These differences lead me to conclude that a plea of autrefois convict could not have been maintained if there had been a conviction for false imprisonment: see Connelly v Director of Public Prosecutions [1965] AC 1254. If so, it seems to me a fortiori the defence of abuse...
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