Wangige, R v

A later prosecution should ordinarily be stayed as an abuse of process where it arises from the same or substantially the same facts as an earlier concluded prosecution, particularly where it advances the offending on a more serious basis. The inquiry is holistic and turns on the incident and all material circumstances, not a narrow comparison of the formal ingredients of the offences.

A new expert opinion which re-evaluates evidence available at the time of the first prosecution does not alter the primary facts. In the circumstances, it will not ordinarily amount to a special circumstance permitting a second prosecution. Very close scrutiny is required before later evidence correcting an earlier investigatory error can justify departure from finality.

The appellant drove a defective car which struck a pedestrian, causing injuries from which the pedestrian later died. He did not stop. Following an investigation, the prosecution charged him in the Magistrates’ Court with vehicle-defect, certification, failing-to-stop and failing-to-report offences. He pleaded guilty and received four months’ imprisonment and a driving disqualification.

Following an inquest-related review, a further collision investigator reached a substantially higher estimate of the car’s speed using the same CCTV material. The prosecution then charged the appellant with causing death by dangerous driving. The Reading Crown Court refused his application to stay that indictment and he pleaded guilty. The issue was whether the later prosecution was an abuse because it was based on substantially the same facts as the concluded Magistrates’ Court proceedings, and, if so, whether special circumstances justified it.

1. Appeal allowed; conviction quashed. The indictment for causing death by dangerous driving should have been stayed as an abuse of process. The court applied the principles in Elrington [1861] 1 B & S 688, Connelly v DPP [1964] AC 1254, Beedie [1998] QB 356 and Phipps [2005] EWCA Crim 33. Those principles require the prosecution, absent special circumstances, to bring together charges arising from the same incident rather than pursue a later, more serious prosecution after conviction.

2. The later charge was founded on substantially the same facts as the earlier proceedings. The correct inquiry was not confined to the differing statutory ingredients of the offences. Both prosecutions arose from the unlawful driving and the collision. The earlier proceedings had also relied on matters relevant to the later dangerous-driving allegation, including the vehicle’s condition, the collision, the resulting death for sentencing purposes, and the appellant’s conduct after the collision.

3. The relevant primary facts had not changed. The later report did not disclose a new incident or new factual material. It gave a different expert evaluation of speed based on evidence available to the first investigator and prosecutor. The court held that the formulation in Dwyer [2012] EWCA Crim 10 should be supplemented: the relevant state of affairs includes what reasonably could have been known to the prosecutor when the first proceedings concluded.

4. No special circumstances justified the second prosecution. The disparity in gravity between the charges was inherent in this type of abuse-of-process case and could not itself suffice. Nor could an artificial distinction between conduct before and after the collision. Although the Crown Prosecution Service had reasonably relied on the first report, the investigating and charging authorities had to bear the consequence of the expert evidence they had chosen to obtain. A later report correcting an earlier evidential evaluation did not, on these facts, justify reopening the matter.

5. Antoine (Jordan) [2014] EWCA Crim 1971 was exceptional and distinguishable. There the wrong charge had been brought contrary to the prosecution’s true intention, the error was corrected immediately, and the defendant knew the intended seriousness of the case. Here the more serious charge had been consciously considered and rejected, and the appellant reasonably understood after sentence that the matter had ended.

• Court of Appeal (Criminal Division) Allowed the appeal in [2020] EWCA Crim 1319, holding that the later prosecution should have been stayed as an abuse of process, and quashed the conviction.
• Reading Crown Court Refused the appellant’s application to stay the indictment on 14 February 2020. The appellant then pleaded guilty to causing death by dangerous driving on 9 March 2020.
• Reading Magistrates’ Court The appellant pleaded guilty to four offences arising from the collision and was sentenced on 30 June 2017.