This was a sad case involving the death of a victim in a road traffic incident in which the the Crown Prosecution Service having carefully considered the circumstances concluded that none of the charges which could be brought would entail a charge holding the driver responsible for the death of the victim .
Not unnaturally the family of the deceased complained over this but the Crown maintained its position and the Defendant was sentenced by a District judge in the Magistrates Court ( 4 months imprisonment and Disqualifications ) . Inquest proceedings followed and questions arose over the conclusions of the investigating officer and his assessment .
A forensic collision investigator was instructed and ultimately differing conclusions were reached over the speed at the time . Further evidence was built around it and this led to a charge of causing death by dangerous driving 2 years after the sentence in the magistrates court . No fresh material was available to the Expert than had been provided to the investigating officer .
The Judge decliend an applicaiton for a stay and sought to distinguish the cases of Beedie and Phipps . She concluded if she was wrong about that she would rely on special circumstances which appeared to relate to the circumstances that happened before and after the collision and the gravity of the offence . The Judge was effectivley suggesting this amounted to fresh evidence . It is easy to have some sympathy for the judges conclusion , however the Court concluded she fell into error .
The Court as a starting point stressed
"41.A convenient starting point is to be found in the statement of Cockburn CJ in the old case of Elrington [1861] 1 B & S 688 at p. 688, where he said this:
“…whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form”.
Further the Court noted that in the House of Lords in Connelly v DPP [1964] AC 1254 . That decision was directly concerned with the scope of the doctrine of autrefois acquit: which was decided to be narrow in scope. But the House of Lords also identified two wider, albeit related, principles. First, no person should be punished twice for an offence arising out of the same, or substantially the same, set of facts. Second, there should be no sequential trials for offences on an ascending scale of gravity (the Elrington point).
Further the Court noted :
"52.In Dwyer [2012] EWCA Crim 10 , a constitution of this court considered cases such as Connelly, Beedie and Phipps. Dwyer was in fact a case where further fresh evidential materials were sought to be relied upon in the second prosecution. The court, at paragraph 25, stated:
“In our judgment, the words ‘the same or substantially the same facts’ or ‘the same incident’ refer to the relevant state of affairs as they existed to the knowledge of the prosecutor at the date the proceedings were concluded”.
In that case, on its facts (the background was drug offending) it was held that the defendant had been charged and sentenced in the second set of proceedings on “almost precisely the same basis” as he had been sentenced in the first set of proceedings. The defendant may have been exceptionally fortunate in the sentence passed in the first proceedings: but “it is not a basis for giving the prosecution a second bite at the same cherry”.
The Court went onto conclude that :
"60.Having considered the circumstances and the competing submissions, we have reached the conclusion – and ultimately, we have to say, the clear conclusion – that, on a proper application of the principles outlined in Beedie and Phipps, the only proper course was to stay the second set of proceedings. It was unfair and oppressive for the appellant to have to face a second prosecution."
This was on the basis that it was substantially the same facts
No Special circumstances could be relied upon and in regard to the Crowns suggestion of a mistake and the issue of the fresh evidence correcting it the Court of Appeal made this interesting observation :
"68.If this is a right approach, the implications are potentially disconcerting. One, no doubt simplistic, example was put in argument. Suppose an incident of domestic violence where a victim with a painfully bruised jaw is taken to hospital. A radiographer examining the X-rays erroneously concludes there is bruising but no fracture. The assailant is speedily charged with common assault, pleads guilty and is sentenced. If the victim thereafter complains of ongoing pain and further examination of the same X-rays by a different radiographer then indicates the existence of a fracture, then on the argument of Mr McGuinness a new charge of assault occasioning actual bodily harm could potentially be brought on the basis that the facts were not substantially the same. That is hard to credit. One can readily think of other examples: which might, indeed, not even involve new expert evidence, as such, at all. It is a troubling proposition that subsequent correction of errors or failures or oversights in an initial investigation and charging decision can of itself give rise to an assertion that the incident was not the same.
69.We also add that although the principles on seeking to adduce fresh evidence on appeals, whether under the principles of Ladd v Marshall [1954] 1 WLR 1489 (see now Civil Procedure Rules Pt 52.21) for civil appeals or under s. 23 of the Criminal Appeal Act 1968 for criminal appeals, are perhaps not directly in point in the present context, they are, we think, analogous and illustrative of the caution to be shown when fresh evidence or a change of circumstances is to be relied on following determination of a case. In both such situations, one factor invariably required to be taken into account is whether the proffered fresh evidence could reasonably have been available at the first trial. Certainly, on appeals against conviction, the appellate court will ordinarily also be very wary of fresh evidence in the form of what is sometimes called “expert shopping”: see, for example, Foy [2020] EWCA Crim 270 ."
The Court concluding that :
"81.In so concluding on this aspect of the case, we make clear that we are not saying that the obtaining of fresh expert, or other, evidence designed to correct an error or oversight or omission relevant to a first charging decision can never sufficiently constitute a special circumstance. Ultimately, all will depend on the particular circumstances of the particular case. What we do say is that on such a scenario very close scrutiny indeed is called for before it may properly be adjudged that a second prosecution may fairly proceed."
The case represents a salutary warning that great care is required in such cases to ensure the evidence collected and the evaluaiton of it is correct in the first place . Further it offers an interesting reminder that the Courts concerns over "Expert Advice Shopping" applies equally to the Crown as much as it does to a prospective appellant .
