Director of Public Prosecutions v Alexander

A police caution is not a conviction and cannot found a plea of autrefois convict or autrefois acquit. A later prosecution arising from the same incident may nevertheless be an abuse of process, but that jurisdiction is narrowly confined and requires special circumstances. Relevant considerations include whether the offences have different ingredients, victims, modes of trial and sanctions, whether any assurance was given that no further prosecution would occur, whether the defendant suffered detriment, and whether new evidence emerged after the caution. Where the cautioned offence and the later offence are materially different, and no assurance, detriment or other special circumstance is shown, the later prosecution is not abusive.

The Director of Public Prosecutions appealed by way of case stated from the decision of North Kent magistrates concerning a proposed prosecution for driving without due care and attention under Road Traffic Act 1988. The respondent had earlier received a police caution for false imprisonment arising from the same incident. The magistrates held that autrefois convict applied and that the later prosecution was an abuse of process, and dismissed the information.

The Divisional Court had to determine whether a caution could engage autrefois convict, and whether the later prosecution was abusive because both offences arose from the same incident.

1. Disposition. The appeal was allowed. The magistrates’ decision was quashed and the case was remitted to them for trial.
2. A simple police caution is an extra-judicial, non-statutory disposal. It is not a conviction or acquittal by a competent court. The respondent therefore could not rely on autrefois convict or autrefois acquit.
3. The abuse-of-process jurisdiction is distinct and narrowly confined. A prosecution following an agreed caution will generally be abusive in the absence of good reason, but subsequent information or evidence, such as materially greater injury than previously known, may constitute such a reason: Gore and Maher [2009] EWCA Crim 1424.
4. The two offences here were materially different. False imprisonment concerned detention against the victim’s will. Careless driving concerned the manner of driving. The ingredients, victims, modes of trial and available sanctions differed. The latter offence could protect road users generally and attract licence points or disqualification.
5. No express or implied assurance had been given that the respondent would not face proceedings for driving. There was no evidence of relevant detriment. The possibility of excluding evidence of the caution, including under section 78 of Police and Criminal Evidence Act 1984, further supported the conclusion that a fair trial remained possible.
6. The magistrates had wrongly equated abuse of process with double jeopardy. The prosecution was not abusive. The court answered all three questions in the case stated in the affirmative.
7. The court noted, without deciding, a possible irregularity because the caution appeared to have been administered without reference to the Crown Prosecution Service, contrary to Home Office Circular 016/2008.

• High Court (Administrative Court): The appeal by way of case stated was allowed. The magistrates’ decision was quashed and the prosecution was remitted for trial.