R v Bournemouth Crown Court, ex parte Weight

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Scarman,Lord Brightman
Judgment Date12 Jul 1984
Judgment citation (vLex)[1984] UKHL J0712-1

[1984] UKHL J0712-1

House of Lords

Lord Diplock

Lord Fraser of Tullybelton

Lord Keith of Kinkel

Lord Scarman

Lord Brightman

In re Weight
(on Appeal from a Divisional Court of the Queen's Bench Division)
Lord Diplock

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it, and for the reasons which he gives I would dismiss this appeal.

Lord Fraser of Tullybelton

My Lords,

2

The appellants were convicted by a magistrates' court of offences of obstructing a police officer in the execution of his duty. They appealed to the Crown Court, which allowed their appeals. But the procedure in the Crown Court was irregular and, on an application by the respondent (the prosecutor) for judicial review, the Queen's Bench Divisional Court made an order of certiorari quashing the order of the Crown Court, and of mandamus to the Crown Court to rehear the appeal before a court presided over by another circuit judge. The Divisional Court certified a question as raising a point of law of general importance, but refused leave to appeal to your Lordships' House. Leave to appeal was subsequently given by the House. The issue in the appeals is whether the Divisional Court had power to quash the order of the Crown Court and to order a rehearing, or whether it did not have power to make such orders because they would have the effect of putting the appellants in jeopardy for a second time and would thus contravene the rule against double jeopardy.

3

The Divisional Court certified the following question as raising a point of law of general importance:

"whether and in what circumstances it is open to a Divisional Court of the Queen's Bench by orders of certiorari and mandamus in an application for judicial review pursuant to section 31 of the Supreme Court Act 1981 and R.S.C., Ord. 53 to quash an order of the Crown Court allowing an appeal from justices and to order the Crown Court to rehear and determine the appeal."

4

The irregularity which led to the quashing of the order of the Crown Court was that the learned judge prematurely stopped the proceedings before the main prosecution witness had completed his evidence in chief, and allowed the appeal. There is no dispute about what occurred in the Crown Court because, as it happens, the proceedings were recorded in shorthand on the application of counsel for the appellant, who had apparently anticipated that the appeal might go further, though not on the point which has in fact arisen. The first and main prosecution witness was the police officer whom the appellants were charged with obstructing. His evidence, putting it briefly, was that he had seen the appellants walking along a street in Bournemouth on the date mentioned in the charge sheet, and had noticed what he thought was a record or records tucked down inside the trousers of the appellant Mackay. He asked Mackay what it was. Mackay denied that there was anything there and tried to run away. A struggle followed, during which the police officer dropped a briefcase which he was carrying, and the appellant Hausamann, on the instructions of Mackay, picked up the briefcase and tried to run away with it. The police officer, with the help of some members of the public, succeeded in detaining both the accused, and as soon as he had done so he said to them: "You are being arrested on suspicion of theft." The learned judge thought, quite wrongly, that in order to constitute an arrest it was necessary for the person concerned to be told in words that he was being arrested. As Ackner L.J. said in the Divisional Court:

"The learned judge appears to have been confusing that which [is] required to constitute an arrest with that which is required to constitute a lawful arrest".

5

For the latter purpose the person arrested must normally be told the reason for his arrest at the time of the arrest, or as soon as possible thereafter. But the arrest itself can be effected without any words being spoken. Acting on his view of the law, the learned judge cross-examined the police officer, in somewhat offensive terms, as to why he had not told the appellants before or during the struggle that they were being arrested. He heard submissions from counsel, in the course of which counsel for the respondent said that he might wish to ask the police officer what was in his briefcase, in order to show why he was anxious about the possibility of losing it. After a short retirement, the learned judge ruled that no arrest had been made before the struggle took place and that the appeal must be allowed. Counsel for the appellants concedes that the learned judge was in error in his view of the law, and that, from the point of view of the prosecutor, there had been a breach of the rules of natural justice.

6

Upon these facts counsel for the appellants submitted that the appellants had been tried before a court (the Crown Court) which had jurisdiction to try them, which had accepted jurisdiction so as to put them in jeopardy, which had embarked on hearing the case on its merits, and which had unambiguously acquitted them. Against an acquittal in such circumstances, said counsel, there was a well established principle that the prosecutor had no right of appeal, except under certain statutory exceptions none of which applied here, and he referred to the maxim "nemo debit bis vexari pro una et eadem causa".

7

My Lords, there are in my opinion two answers to the argument so persuasively advanced by Mr. Spokes. Both depend essentially upon the fact that the procedure in the Crown Court was not a trial by a court of first instance but an appeal. That is of course perfectly clear, but I shall refer briefly to the relevant statutory provisions to show the nature of the...

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2 cases
  • R v Portsmouth Crown Court ex parte Dpp
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 29 April 1993
    ...12 That passage was expressly approved by the House of Lords the following year in R. v Bournemouth Crown Court ex parte Weight (1984) 1 WLR 980. It is true, as Miss James pointed out, that Lord Fraser did not answer the question in the broad terms certified by the Divisional Court. But at ......
  • R CROWN PROSECUTION SERVICE v PORTSMOUTH CROWN COURT
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 1 May 2003
    ...that he did. The jurisdiction of this court to quash the order of Judge Hughes in the present case is undoubted (see the R v Bournemouth Crown Court ex parte Weight [1984] 1 WLR 980 at 984G, where Lord Fraser said this: "Whatever the position may be at a trial before a court of first i......

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