R v Beedie
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT,LORD JUSTICE ROSE |
| Judgment Date | 11 March 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J0311-10 |
| Docket Number | No. 9603295 X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 March 1997 |
[1997] EWCA Crim J0311-10
The Vice President
(Lord Justice Rose)
Mr Justice Dyson
and
Mr Justice Timothy Walker
The Vice President
(Lord Justice Rose)
Mr Justice Owen
and
Mr Justice Morland
No. 9603295 X3
No. 9603295 X3
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR R SMITH QC (13/14.2.97) & MR GATESHILL appeared on behalf of the Appellant
MR K KEEN QC (13/14.2.97) & MR TREMBERG appeared on behalf of the Crown
Mr R Smith QC (13/14.2.97) & Mr Gateshill appeared on behalf of the Appellant
Mr K Keen QC (13/14.2.97) & Mr Tremberg appeared on behalf of the Crown
Tuesday 11th March 1997
At Sheffield Crown Court, on 19th April 1996, the appellant pleaded guilty to manslaughter, and on 22nd April was sentenced to 18 months' imprisonment suspended for two years by Clarke J. He appeals against conviction by virtue of a certificate of the trial judge.
On 14th June 1994 the appellant had pleaded guilty in the Magistrates Court to an offence contrary to section 33 of the Health and Safety at Work Act 1974, arising from a breach of duty imposed by section 3(2) of that Act. The question raised by this appeal is whether the judge was right in rejecting the appellant's plea of autrefois convict and in refusing to stay the proceedings for manslaughter.
The relevant facts are that on 29th November 1993 Tracy Murphy, a young woman of 19, died of carbon monoxide poisoning caused by the use of a defective gas fire in her bedsit at 56 Pearson Park, Kingston Upon Hull. The appellant was the landlord, and had a duty under the Health and Safety at Work Act 1974 to ensure that the appliance was maintained and repaired. The fire had been installed prior to 1983 when the appellant bought the house. The chimney was blocked with debris which had accumulated over the years. Routine servicing of the fire and flue would have revealed the fatal defects.
Miss Murphy's body was discovered on 30th November 1993. Representatives of the police and British Gas attended. On 1st December representatives of British Gas, the Health and Safety Executive and Hull City Council attended the house, together with the appellant. On 3rd December the appellant was interviewed under caution by the Council's environmental health officer in the presence of representatives of the Health and Safety Executive. During the first week of December, PC Freer of Humberside Police was instructed to carry out an investigation as Coroner's Officer, and did so. In December 1993 an inquest into Miss Murphy's death was adjourned. On 23rd March 1994 the appellant was interviewed for a second time by the local authority.
The Health and Safety Executive prosecuted the appellant under section 33 of the 1974 Act in that, being a self-employed person, he did not conduct his undertaking as a landlord so as to ensure, so far as was reasonably practicable, Tracy Murphy's health and safety, by maintaining the fire and flue in good repair and proper working order. On 14th June the appellant pleaded guilty before the Magistrates. He was fined £1,500 and ordered to pay £418 costs. Proceedings were also taken by the City Council against the appellant as manager of the premises under section 369 of the Housing Act 1985, and regulations 7 and 8 of the Housing (Management of Houses in Multiple Housing Occupation) Regulations 1990, in relation to the state of a number of other gas installations in the same premises. The allegation was in each case that the appellant failed to ensure that the installations were maintained in repair and in proper working order. No evidence was offered in relation to Miss Murphy's bedsit because the allegation was the same as that in relation to the prosecution by the Health and Safety Executive. On 6th July 1994 the appellant pleaded guilty before the Justices to all charges and was granted a conditional discharge and ordered to pay £1,000 costs. Clarke J concluded that, at this stage, following the two separate prosecutions before the Justices, the defendant reasonably thought that it was the end of the matter in relation to any prosecution.
The inquest, having previously been adjourned, was resumed on 25th August 1994. The Coroner, following a discussion with the appellant's solicitor, Mr Forde, required the appellant to give evidence, otherwise he would be in contempt. The Coroner's view was that, as the appellant had already been prosecuted, there was no prejudice to him because there was no realistic prospect of a prosecution for manslaughter in the event of a verdict of unlawful killing at the inquest. Clarke J concluded that this was the only inference which could be drawn from the Coroner's failure to give the appellant a warning under Rule 22 of the Coroners Rules that he was not obliged to answer any question tending to incriminate him, and that he could refuse to answer such a question. That conclusion, as the judge found, was also consistent with the evidence of Mr Forde about his discussion with the Coroner, which the judge accepted. The cross-examination of the appellant on behalf of Miss Murphy's family was designed to elicit answers which would support a case both of breach of duty and of unlawful killing. The Coroner summed up the case to the jury impeccably. They returned a verdict of unlawful killing.
On 6th September 1994 the police, for the first time, notified the Crown Prosecution Service about the case. They obtained a transcript of the inquest proceedings. On 25th March 1995 the appellant attended for interview by the police. He declined to comment. He was charged with manslaughter.
At the trial Mr Robert Smith QC, then as now appearing for the defendant, applied to stay the indictment relying on Connelly v. DPP [1964] AC 1254. The judge rejected that submission. Thereupon the appellant pleaded guilty to manslaughter and was sentenced as we indicated at the outset.
The first and second grounds of appeal assert that the judge erred in law in rejecting the plea of autrefois convict, and the judge's analysis of the speeches in Connelly v. DPP led him to conclude, wrongly, that that plea could only be successful if the legal characteristics of both offences were the same, whereas it was sufficient for the plea to succeed for the appellant to show that the evidence necessary to support the indictment for manslaughter, or the facts constituting manslaughter, would have been sufficient to procure a conviction under the Health and Safety at Work Act. Mr Smith's first submission to this Court, however, was unenthusiastic in relation to these grounds. His second submission in support of ground 3 was advanced with much more vigour: the judge had a discretion to stay the proceedings because to proceed with them would offend the general rule that no man should be punished twice for an offence arising out of the same, or substantially the same, set of facts, and to do so would offend the established principle that a defendant is not to be tried again on the same facts for more serious offences on an ascending scale of gravity. Mr Smith's third submission was that the judge wrongly exercised his discretion in failing to identify special circumstances justifying further proceedings, in carrying out an inappropriate balancing exercise, in seeking to distinguish Connelly on the ground that the relevant indictment rule (now Rule 9 of the Indictment Rules 1971) applied in Connelly but not to the instant proceedings, and in concluding that the trial process itself was capable of curing any risk of oppression or prejudice.
In relation to his first submission, Mr Smith was inclined to concede, on reflection, that Clarke's J analysis of the speeches in Connelly v. DPP was correct, namely, that the majority of the House of Lords identified a narrow principle of autrefois, applicable only where the same offence is alleged in the second indictment. In our judgment this concession was rightly made. At 1339 Lord Devlin said, "For the doctrine to apply it must be the same offence both in fact and in law", and he went on at 1340, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at 1368, agreed with the opinion of Lord Devlin. Lord Reid, at 1295, said:
"…..many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope… 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."
It follows that we are unable to accept the view of the Editors of Archbold expressed in earlier editions, and in paragraph 4–117 of the 1997 Edition, that Lord Morris's speech and, in particular, his third and fourth principles expressed at page 1305 (that the principle of autrefois applies to offences which are the same, or substantially the same, and an appropriate test is whether the evidence to support the second indictment or the facts constituting the second offence would have been sufficient to procure a conviction on the first indictment) represents the ratio of the...
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