R v Gore (Raymond); R v Maher (Timothy)
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales,THE LORD CHIEF JUSTICE |
| Judgment Date | 30 July 2009 |
| Neutral Citation | [2009] EWCA Crim 1835,[2009] EWCA Crim 1424 |
| Docket Number | No. 2008/56235/C2,Case No: 2008/05623/C2(1) |
| Court | Court of Appeal (Criminal Division) |
| Date | 30 July 2009 |
[2009] EWCA Crim 1424
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE GILMOUR QC
Before : The Lord Chief Justice Of England And Wales
Mr Justice Simon
and
Mr Justice Blair
Case No: 2008/05623/C2(1)
2009/00187/C2(2)
Mr C Lander for the Appellants
Mr R. Jones for the Crown
Hearing dates : 1 st July 2009
These appeals against conviction were dismissed on 1 July 2009.
The convictions of Raymond Gore and Timothy Maher arose from an incident in Liverpool City Centre on 28 October 2007. At about 2.00 am a young man, Steven Smith, was assaulted by a group of young men in the City Centre. The incident was captured on CCTV. This showed a group of young men chasing Mr Smith. In the course of the chase he fell to the ground. While there he was punched and kicked. He appeared dazed, and for a while afterwards he was probably semi-conscious.
Police officers were alerted to the disturbance by the CCTV operators. They did not examine the CCTV material itself, they relied on the reports of an unpleasant incident in the street. They went straight to the scene. They found Mr Smith. They saw that he had a cut to the face, and heard that he was complaining of a sore arm, and noticed that he was somewhat confused. It was not then appreciated, and there was no reason why it should have been appreciated, that his elbow was fractured, and that two operations would later be required. At that time there was no sufficient justification for arresting either man on the basis that grievous bodily harm had been inflicted on or caused to Mr Smith.
Gore and Maher were detained nearby. Mr Smith said to the police that he did not wish to make a complaint, but he was later unable to remember having said this. Gore admitted to being involved in an altercation in a public place while he was drunk. A Fixed Penalty Notice was issued to him for that offence, contrary to section 91 of the Criminal Justice Act 1967 (this being one of the penalty offences specified in section a of the Criminal Justice and Police Act 2001, the “2001 Act”). This was issued at 2.38 am on 28 October. A similar notice, but relating to an offence of behaviour likely to cause harassment alarm or distress, contrary to section 5 of the Public Order Act 1986 was issued to Maher at 2.40am. Fixed penalty notices cannot be issued for offences involving grievous bodily harm or wounding contrary to section 18 or section 20 of the Offences Against the Person Act 1861.
5. On the following day the police reviewed the CCTV evidence. It was decided that the fixed penalty notices were inappropriate. A criminal investigation was ordered, at first for affray. Mr Smith was not an enthusiastic witness, but on 14 November a statement was taken from him. Gore was arrested and interviewed on 8 and 22 November. Maher was arrested and interviewed on 22 November. They were both charged on 5 January 2008 with inflicting grievous bodily harm on Mr Smith.
On 9 September 2089 applications were made to His Honour Judge Gilmour QC at Liverpool Crown Court to stay the indictment as an abuse of process. In a carefully reasoned decision, Judge Gilmore refused the application. Thereupon Gore pleaded guilty to inflicting grievous bodily harm. Maher was tried and convicted by the jury of the same offence. Sentence has been adjourned pending the outcome of these appeals.
The appeals against conviction are founded on the proposition that the refusal to stay the indictment against the appellants as an abuse of process was wrong in law. The argument arises from the issue of the fixed penalty notice for disorder by the police at the scene for what is said to be the identical conduct for which the appellants were prosecuted before the Crown Court. In light of the relevant provisions of the 2001 Act, and the linked statutory guidelines as well as the analogous case law, the criminal proceedings are unfair and therefore constitute an abuse of process.
The principle against sequential trials, or a series of trials which would have the effect of punishing a man twice for an offence arising out of the same or substantially the same fact, is well understood. See R v Elrington (1861) 1 B. & S. 688, as explained in Connolly v DPP [1964] AC 1254: R v Beedie [1997] 2 CAR 167. It is equally well understood that where a defendant has been given an unequivocal assurance that he will not be prosecuted and has acted on that assurance to his disadvantage, that, too, may found an abuse of process argument ( H v Guildford Youth Court [2008] EWHC 206: R v Abu Hamza [2007] 1 CAR 27). Both principles are said to be engaged.
Section 2(4) of the 2001 Act defines a penalty notice. It means “a notice offering the opportunity, by paying a penalty…to discharge any liability to be convicted of the offence to which the notice relates”. Thus the notice provides the opportunity to a potential defendant to discharge any possible liability to conviction on payment of the penalty. The liability is discharged on payment of the penalty. Section 3(3)(b) requires the notice to state the alleged offence and (c) requires particulars of the offence to be given. Section 5 provides a general restriction on proceedings.
“(1) Proceedings for the offence to which a penalty notice relates may not be brought until the end of a period of 21 days beginning with the date on which the notice given (“the suspended enforcement period”)
(2) If the penalty is paid before the end of the suspended enforcement period, no proceedings may be brought for the offence”.
For this purpose 'proceedings' is a reference to a criminal prosecution. These legislative processes are all concerned with the implementation of the processes which relate to the offence specified in the notice.
Section 6 permits the Secretary of State to issue guidance about the issuing of penalty notice, and the way in which constables should exercise the discretion to do so. A number of provisions in the guidance have been drawn to our attention. In the context of the “overview of the Scheme” it is stated that “…Once an officer has issued a notice, the decision to issue has been made and no alternative should then be considered”. It is further stated at paragraph 8.4 that “where a penalty notice is issued and it subsequently comes to light after the incident that a more serious or non-penalty offence was committed on the same...
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