Antoine v R

A second prosecution for different offences arising from substantially the same facts is prima facie oppressive, but it is not automatically an abuse of process. The court must decide whether special circumstances make the further prosecution just and whether its continuation would offend justice and propriety or undermine public confidence.

A prompt, good-faith correction of a charging error may constitute special circumstances. Under Firearms Act 1968 section 51A, once exceptional circumstances justify departure from the statutory minimum sentence, sentence is at large. The court may then give appropriate credit for a timely guilty plea.

The appellant was first convicted in the magistrates’ court of possessing a firearm and ammunition without a certificate. The charges arose from his possession of a revolver. He received concurrent sentences of four months’ detention.

The Crown Prosecution Service had wrongly treated the matter as one under section 1 of the Firearms Act 1968. It later charged the appellant in the Crown Court with possession of a prohibited firearm under section 5(1)(ABA) and possession of a firearm following a detention and training order. The Crown Court refused to stay the later prosecution as an abuse of process. The appellant pleaded guilty and received 56 months’ detention on the prohibited-firearm count.

The appeal concerned whether the later prosecution should have been stayed because of the earlier convictions and, if not, whether the sentence should reflect the early guilty plea after exceptional circumstances had been found under section 51A.

1. Conviction appeal dismissed. The court held that a second prosecution based on the same or substantially the same facts is prima facie oppressive, but falls within the ordinary second category of abuse of process. The issue is whether continuation would offend the court’s sense of justice and propriety or undermine public confidence. The requirement to show special circumstances does not create a separate category or alter that ultimate question.

2. The court applied the approach derived from Connelly v DPP [1964] AC 1254 and the two-limb formulation in Curtis Warren v HM Attorney General of the Bailiwick of Jersey [2011] 2 Cr App R 29. The earlier convictions resulted from a serious but prompt charging error. The correct section 5 charge was brought only shortly after arrest and shortly after sentence. The case was not an impermissible escalation from lesser to more serious charges, of the kind considered in R v Beedie [1998] QB 356 and R v Dwyer [2012] EWCA Crim 10.

3. Special circumstances justified continuation. The appellant had carried a loaded revolver in public, was subject to a detention and training order, expected a lengthy custodial sentence, and was promptly told that appropriate further charges would be brought. The four-month sentence was an undeserved windfall. Although the Crown Prosecution Service was at fault, there was no bad faith and its errors were rectified quickly. A stay would itself have brought the criminal justice system into disrepute.

4. Sentence appeal allowed. The judge correctly held that a guilty plea alone could not reduce the mandatory minimum under section 51A. However, once exceptional circumstances had properly been found, sentence was at large. The statutory minimum remained relevant, but the court could also give full credit for the early guilty plea, consistently with R v Jordan, Alleyne, Redfern [2005] 2 Cr App R (S) 44.

5. A provisional sentence of five years was appropriate. After deducting four months for the exceptional circumstances and one third for the guilty plea, the sentence on count 1 was reduced from 56 months to 37 months’ detention in a young offenders’ institution. The concurrent sentence on count 2 remained unchanged.

• Court of Appeal (Criminal Division) — by [2014] EWCA Crim 1971, dismissed the appeal against conviction but allowed the appeal against sentence and substituted 37 months’ detention on count 1.
• Crown Court at Luton — on 18 October 2013, refused an application to stay the later prosecution as an abuse of process. Following guilty pleas on 5 November 2013, imposed 56 months’ detention on the prohibited-firearm count and 24 months concurrently on the section 21 count.
• Luton Magistrates’ Court — on 30 July 2013, accepted guilty pleas to lesser section 1 firearm and ammunition offences and imposed concurrent four-month sentences.