Gore, R v

Payment of a fixed penalty notice under the Criminal Justice and Police Act 2001 discharges liability to conviction only for the offence specified in the notice. It does not confer immunity from prosecution for a distinct, more serious non-penalty offence which later comes to light. A later prosecution may be an abuse of process where it creates impermissible double punishment or defeats an unequivocal assurance of non-prosecution on which the defendant relied to his disadvantage. Neither principle applies where the notice alleges only low-level disorder, the serious offending and evidence emerge later, and no assurance is given that prosecution for another offence will not follow.

Following an assault in Liverpool city centre, Raymond Gore and Timothy Maher were each issued with a fixed penalty notice for low-level public-order offending. The police had not viewed the CCTV footage and did not then know that the victim had suffered a fractured elbow. After reviewing the footage and obtaining further evidence, the police charged both appellants with inflicting grievous bodily harm.

At Liverpool Crown Court, His Honour Judge Gilmour QC refused their application to stay the indictment as an abuse of process. Gore then pleaded guilty and Maher was convicted after trial. They appealed against conviction, contending that payment of the notices precluded prosecution for conduct arising from the same incident.

1. The appeals were dismissed. The Crown Court was entitled to refuse a stay for abuse of process.

2. Under section 2(4) of the Criminal Justice and Police Act 2001, a penalty notice offers an opportunity to discharge liability to conviction for the offence to which the notice relates. The requirements to state that offence and give particulars, together with section 5, confirm that the statutory bar is confined to prosecution for that specified offence. Payment of a notice for low-level public disorder did not bar a later charge for a distinct and more serious offence of violence arising from the same incident.

3. The officers did not know the material facts when the notices were issued. The notices did not allege assault or grievous bodily harm, and nothing said or written represented that the appellants would never be prosecuted for another offence. There was therefore neither improper escalation of charge nor a reasonable expectation of immunity from prosecution if later evidence established serious violence.

4. Jones v Whalley [2007] 1 AC 63 did not govern the case. That decision concerned a formal caution induced by a representation of non-prosecution and a proposed prosecution for the same offence. The court also approved the fact-sensitive approach in Guest v Director of Public Prosecutions [2009] EWHC 594. Justice catching up with serious violence in these circumstances was not an affront to public justice.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction and upheld the refusal to stay the indictment for abuse of process.
• Crown Court at Liverpool — His Honour Judge Gilmour QC refused the abuse-of-process application. Gore pleaded guilty to inflicting grievous bodily harm, and Maher was convicted of that offence by a jury.