Phipps, R v

After a first prosecution has concluded, the Crown should not ordinarily commence a later prosecution arising from the same or substantially the same facts. The principle applies where the proceedings arise from the same incident, even though the offences have different legal ingredients.

This is a distinct abuse-of-process category. A stay is the general rule unless the Crown establishes special or exceptional circumstances justifying the second prosecution. The defendant need not prove that a fair trial is impossible, prosecutorial bad faith, or serious prejudice.

The appellant first pleaded guilty in the magistrates’ court to driving with excess alcohol after driving on the A3. He was fined and disqualified. After the victim or her family complained to the press about the sentence, the prosecuting authorities reconsidered the matter and later brought a charge of dangerous driving arising from the same driving incident.

In the Crown Court, the judge rejected an application to stay the dangerous-driving prosecution as an abuse of process. He regarded the excess-alcohol allegation and the manner of driving as different facts. The appellant then pleaded guilty and was sentenced to imprisonment and disqualification.

The central issue on appeal was whether the later prosecution arose from the same or substantially the same facts as the earlier one and, if so, whether special or exceptional circumstances justified it.

1. Appeal against conviction allowed. The later dangerous-driving proceedings should have been stayed as an abuse of process.
2. The Crown should, save in special or exceptional circumstances, decide before the conclusion of the first proceedings what charges to bring from the same incident. It is oppressive to subject a defendant to successive prosecutions arising from the same or substantially the same facts, even where the offences differ in law.
3. This is not an ordinary delay-based abuse-of-process inquiry. The defendant need not show that a fair trial cannot be held. Once the relevant factual connection is established, a stay is the general rule and the Crown bears the burden of showing special or exceptional circumstances.
4. The excess-alcohol and dangerous-driving charges both arose from the appellant’s unlawful driving on the A3 at Malden. The existence of independent evidence of dangerous driving did not remove the substantial factual overlap. Alcohol was relevant to penalty in the first prosecution and could be relevant to both the nature of the driving and penalty in the second.
5. The Crown accepted that there were no special circumstances if the charges arose from the same or substantially the same facts. The appeal against conviction was therefore allowed.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and held that the Crown Court proceedings for dangerous driving should have been stayed as an abuse of process.
• Crown Court at Kingston: The appellant pleaded guilty to dangerous driving after the judge ruled that the later prosecution was not an abuse of process. He received eight months’ imprisonment and a two-year driving disqualification.
• Kingston Magistrates’ Court: The appellant pleaded guilty to driving with excess alcohol and was fined £300 and disqualified for 12 months.