Gavigan & Anor, R (on the application of) v Crown Prosecution Service

A penalty notice discharges liability only for the offence to which it relates. A person who declines the opportunity to pay and elects a court hearing may subsequently be prosecuted for another, more serious offence arising from the same facts. The wording of the notice, even if capable of creating an expectation that only the specified offence would be pursued, does not alter the statutory position. An abuse-of-process argument might arise where the penalty has been paid and a later prosecution is brought for a more serious offence, but that question was left open.

Father and son claimants sought judicial review of a District Judge’s refusal to stay their prosecution as an abuse of process. They had received penalty notices identifying offences under section 5 of the Public Order Act 1986, elected to have the matter dealt with by a court, and were then charged with more serious offences under section 4 of that Act. The central issue was whether issuing the notices, and the claimants’ election for a hearing, prevented prosecution for different offences arising from the same incident.

1. Claim dismissed. The prosecution was not an abuse of process. The stay was lifted, and the claimants were ordered to pay the interested party’s costs of £1,294.25.
2. Under section 2(4) of the Criminal Justice and Police Act 2001, payment of a penalty discharges liability only for conviction of the offence to which the notice relates. It does not discharge liability for other offences arising from the same facts.
3. The reasoning in R v Gore and Maher [2009] 1 WLR 2454 supported that reading. The fact that the more serious offence in that case was charged after further evidence emerged did not establish a rule limiting later prosecution to cases involving newly discovered evidence.
4. R v Beedie [1997] 2 Cr App R 167 provided an analogy only. A later prosecution for a more serious offence might be unfair where the defendant had paid the penalty and had not elected a hearing. The court left that issue for determination if it arose.
5. The claimants’ possible expectation, arising from the unfortunate wording of the notices, could not displace the statutory rule. There was no unfairness in prosecuting them for the section 4 offences.

First-instance judicial review proceedings. The judgment records no earlier decision requiring separate appellate treatment.