R v Arnold (Louise) ; R v LSA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 16 May 2008 |
| Neutral Citation | [2008] EWCA Crim 1034 |
| Docket Number | Case No: 200706562 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 May 2008 |
[2008] EWCA Crim 1034
Lord Justice Hughes
Mr Justice Treacy and
Sir Peter Cresswell
Case No: 200706562 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM A COURT MARTIAL AT BULFORD
JUDGE ADVOCATE McGRIGOR
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R Whittam QC and Mr F Osman (instructed by Royal Air Force
Prosecuting Authority) for the Crown (neither below)
Lord Thomas of Gresford QC (instructed by Wilkin Chapman) for the
Respondent (not below)
Hearing dates : 15 th February and 9 th May 2008
This is an interlocutory appeal by the prosecution in a Court Martial case. It is brought under provisions of military law which mirror ss 58–61 Criminal Justice Act 2003. Those provisions provide the prosecution with a right of appeal against legal rulings made by the Judge Advocate, providing that the prosecution accepts that, in the event that the appeal fails to obtain leave or is abandoned, the defendant must be acquitted of each offence which is the subject of the appeal. That condition appears in article 4(8) Courts-Martial (Prosecution Appeals) Order 2006; SI 2006 No 1786, which provisions are identical to those applicable in civilian courts under section 58(8) Criminal Justice Act 2003. In R v R [2008] EWCA Crim 370 the condition was conveniently dubbed 'the acquittal agreement' (see paragraph 19).
The defendant was charged with two offences contrary to the Station Standing Orders of her military base. The gist of the two offences was (i) driving when unfit to do so through drink and (ii) dangerous driving. The offences were said to have been committed on the same evening. Although the prosecution submitted that they were in fact consecutive offences, relating to different pieces of driving, with the dangerous driving first, the Judge Advocate ruled (first) that they were in effect offences charged on the same facts. Having so ruled, he went on to direct acquittal on the charge of unfitness to drive. Those two decisions together constitute the first ruling here in question. Later in a second ruling he stayed the dangerous driving charge as an abuse of the process of the court. He found the reason to make both these rulings in a note at paragraph 32–29 of Archbold which in turn says that it is based upon R v Forest of Dean Justices, ex p Farley [1990] RTR 228. The Crown wishes to submit on appeal that both those rulings were wrong.
The Crown case, put shortly, is that the defendant attended a party at the quarters of a friend and drank a good deal. When she left, she insisted upon driving despite the strong efforts of two men and the hostess to prevent her. Eventually she agreed simply to park the car, with one of the men taking up position in the passenger seat, on his case to keep an eye on her. Instead of parking she drove the car towards the second man, who leaped onto the bonnet to avoid being struck and clung on to the windscreen wiper. With him in that position, it is alleged that she drove some 350 yards or so, until he fell off, struck his head on the kerb, lost consciousness and sustained a number of injuries. That was said to be the act of dangerous driving. When he got up and staggered off dazed, she drove a further 500 yards or so, apparently to check that he was alright. She and the first man helped him into his quarters. Then a little later she motored another 900 yards or so back to the place of the party, taking both men with her. The two journeys after the injury to the man on the bonnet were put as the driving when unfit. That is the Crown case. Whether it would be made good or not, if tried out, is undetermined.
The defendant's case is that the evidence against her is untruthful and exaggerated, in part to support a compensation claim by the injured man, and that the two men were drunk. It appears that she denies that she had had more than a single drink and so says that she was not unfit or impaired in driving. As to the man on the bonnet, she contends that he jumped onto it as a joke, not to avoid being run over, and that all she did was to move her car very slowly in order to persuade him to get off. What facts might be found by the court, and whether the latter contention, if true, would provide any defence to dangerous driving are matters likewise undetermined.
The charges
Section 36(1) Air Force Act 1955 makes it an offence to contravene any provision of Station Standing Orders which is known to the defendant, or of which s/he might reasonably be expected to know. The relevant Station Standing Orders provided by Number 144:
“A person to whom these orders apply shall not within the station, whether on a road or otherwise:
(a) drive….when unfit to drive through drink or drugs to such an extent that his ability to drive properly is, for the time being, impaired;
…..
(c) drive a vehicle dangerously.”
The defendant was charged with separate offences contrary to section 3The first alleged a contravention of Standing Order 144(a) (“the unfitness to drive charge”). The second alleges a contravention of Standing Order 144(c) (“the dangerous driving charge”). Both in his opening note and in opening the case to the court [E10], and again when the Judge Advocate raised the passage in Archbold at the close of the Crown case, the prosecutor made crystal clear which piece of driving was relied upon to support each charge. The driving with the man on the bonnet was relied upon as the dangerous driving, and the driving after he fell off was relied upon to support the charge of driving whilst unfit and impaired. That had been the position of the Crown since a pre-trial directions hearing. There was no complaint about it on the part of the defendant; she had clearly understood that throughout.
The passage in Archbold
In the 2007 edition of Archbold's Criminal Pleading, Evidence and Practice there appears in chapter 32, relating to motoring offences, the following statement, under the heading 'Order of Trials where there is an excess alcohol charge':
“Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is 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. A contrary course of action would amount to an abuse of the process of the court: see R v Forest of Dean JJ, ex p Farley [1990] RTR 228.”
The same words remain in the 2008 edition, although in that edition there follows a bare reference to R v Hartnett [2003] Crim LR 719.
It is clear that (i) no point arising from this passage was taken initially on behalf of the defendant, (ii) the Judge Advocate himself raised it, but (iii) no-one had or obtained the report of ex p Farley.
The course of proceedings
The Crown case was completed. At the half way stage in the trial the Judge Advocate raised, of his own motion, this passage in Archbold. He asked the prosecution to consider it. After a certain amount of discussion, attributable no doubt to the fact that the point had been raised unexpectedly, the positions of the parties were as follows.
The Crown submitted that:
i) the passage would apply if the two charges were founded on the same facts, but
ii) the two charges were not founded on the same facts because they charged two different pieces of driving; and
iii) if, contrary to their submission, the charges were founded on the same facts, they would elect to proceed upon the dangerous driving charge alone.
For the defendant, Mr Blades submitted that the whole case should be stayed as an abuse of the process of the court. He accepted, eventually, that the evidence of drink was equally admissible upon the charge of dangerous driving as on the charge of unfitness to drive, although he contended (on what basis we cannot see) that if the dangerous driving charge had been tried alone, that evidence would have been less extensively investigated. He contended that it was too late for the prosecution to change its stance.
The Judge Advocate ruled, in effect, that the two charges were founded on the same facts. He said:
“Whilst the prosecution say that the two additional journeys are not based on the same facts I find this to be an artificial distinction and that the evidence of the evening as a whole is so entwined that the two charges are, in reality, based on the same facts. I conclude that the one is included in the other and the cumulative result is oppressive. Thus I conclude that this authority applies to the present case.
I therefore have to go on to consider whether the result is that Mr Blades' application at the close of the prosecution case to stay proceedings succeeds…..I take the view that all the evidence adduced in the present trial would be admissible on either charge, of dangerous driving alone or unfit to drive alone. I do not consider that the defence has been taken by surprise and therefore suffered any real prejudice….I therefore reject the defence application for a stay of proceedings in relation to both charges.
The prosecution have indicated that should I rule that the authority does apply to this case they would wish to proceed on the dangerous driving charge alone. Therefore I will direct the court to find the accused not guilty in relation to the unfit to drive charge, which will be...
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