JFJ, R. v

A plea of autrefois acquit is confined to a later charge for the same offence in fact and in law. A formal dismissal following an unopposed reorganisation of the prosecution case does not create the plea where the defendant was not truly at risk of conviction on the abandoned charge.

In the magistrates’ court, peril arises only when the court is sitting to determine guilt and can realistically convict. It does not arise merely because a plea has been entered. Protection against an oppressive second prosecution on the same or similar facts lies in the court’s abuse-of-process jurisdiction, not in an expanded plea of autrefois.

The respondent was initially charged with common assault after an alleged assault on his partner. Further medical evidence led the prosecution to pursue assault occasioning actual bodily harm under Offences Against the Person Act 1861, s.47.

At a hearing before the magistrates, the respondent indicated a not-guilty plea to the more serious charge. The magistrates considered it appropriate for Crown Court trial. The prosecution then offered no evidence on the common-assault charge, which was formally dismissed. The Crown Court held that this created a plea of autrefois acquit and stayed the indictment.

The Crown appealed. The central issues were the scope of the plea, whether the respondent had been in peril when the lesser charge was dismissed, and whether the court was bound by R v G [2001] EWCA Crim 1215.

1. Appeal allowed. The indictment for assault occasioning actual bodily harm was to proceed, and the respondent was to be tried in the Crown Court as soon as possible.

2. The ratio of Connelly v DPP [1964] AC 1254 was the narrow approach in Lord Devlin’s speech. A plea of autrefois acquit requires that the earlier and later charges are the same in fact and in law. Common assault and assault occasioning actual bodily harm are not the same offence in law. The plea therefore did not arise.

3. The court rejected the suggestion that earlier decisions concerning aggravated charges had expanded the plea. Those decisions were properly understood as instances of the wider jurisdiction to prevent oppression. That jurisdiction may require a stay where repeated prosecutions on the same or similar facts are unfair or abusive. It did not assist the respondent, because the Crown’s conduct was neither unfair nor oppressive.

4. In any event, the respondent had not been in peril when no evidence was offered on the common-assault charge. The dismissal formed part of an unopposed reorganisation of the prosecution case. Further, the magistrates had already dealt with the more serious charge and were not then sitting to determine guilt on the abandoned charge. A defendant is in peril in the magistrates’ court only at a hearing at which the court can decide guilt, not automatically when a plea is taken.

5. R v G [2001] EWCA Crim 1215 was wrongly decided and was not followed. It had not considered the controlling analysis in Connelly v DPP or the relevant no-peril authorities. It was also distinguishable: section 27 of the Magistrates’ Court Act 1980 did not apply to common assault, which remained a summary offence under sections 39 and 40 of the Criminal Justice Act 1988, even if included in an indictment.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeal under the Criminal Justice Act 2003 and directed that the prosecution on the indictment proceed.

• Crown Court: Stayed the indictment for assault occasioning actual bodily harm after accepting a plea of autrefois acquit.

• Magistrates’ Court: Dismissed the common-assault charge after the prosecution offered no evidence, while the more serious allegation was committed for Crown Court trial.