R v Kaleb Hamer

A defendant may be convicted of two offences arising from one course of conduct where the offences are legally distinct and pursuing both is not unjust, oppressive or duplicitous. This can include a substantive bladed-article offence and breach of a knife crime prevention order. The court should compare the offences’ legal elements, defences, burdens of proof and factual exclusions. It may be necessary to record both the substantive wrongdoing and the breach of the earlier court order. Courts retain power to stay proceedings as an abuse or adapt trial procedure if multiple charges cause unfairness. Sentencing must respect totality, including through concurrent sentences and treating the lesser offence as aggravating the greater.

The appellant was subject to a Knife Crime Prevention Order. He was later found to have possessed a lock-knife in a public place after passing it to a 14-year-old boy. He pleaded guilty to possessing an article with a blade or point contrary to Criminal Justice Act 1988, section 139(1), and to breaching the order contrary to Offensive Weapons Act 2019, section 29.

Wood Green Crown Court refused to vacate the plea to the bladed-article count and imposed concurrent sentences. The central issue was whether two convictions founded on the same conduct were impermissibly duplicative when the offences had distinct legal elements.

Appeal against conviction dismissed.

1. The rule against autrefois acquit and autrefois convict applies to repeated prosecutions for an identical offence. The courts also possess a broader power to prevent prosecution for the same conduct where doing so would be unjust, oppressive or duplicitous. The court considered Connelly v DPP [1964] AC 1254 and the principle discussed in R (Dyer) v Watford Magistrates Court [2013] EWHC 547 (Admin).
2. The two offences in this case were legally distinct. The bladed-article offence was a substantive criminal act, whereas the second offence was breach of a previous court order. Their defences and burdens of proof differed. One offence contained exclusions, including a knife-size qualification and specified factual defences, which were absent from the other. It was possible to commit one offence without committing both. The breach was therefore a distinct offence in its own right, consistent with R v H, Stevens and Lovegrove [2006] 2 Cr App R (S) 68.
3. R v Hartnett [2003] EWCA Crim 345 provided direct authority that two legally distinct offences may be charged and pursued even when founded on the same acts. That approach was discussed and approved in R v Arnold [2008] 2 Cr App R 37. The power to stay proceedings as an abuse or adapt the trial process where multiple charges cause unfairness remains available, but no such unfairness arose here.
4. It was important that the breach of the court order was established and recorded, so that future sentencing courts would know that the order had been ignored. On sentence, totality had to be kept in mind. Concurrent sentences, with the lesser offence treated as aggravating the greater, were a proper approach.

1. Court of Appeal (Criminal Division) — In [2023] EWCA Crim 516, the appeal against conviction was dismissed.
2. Wood Green Crown Court — The appellant’s application to vacate his guilty plea to the bladed-article count was refused. He was sentenced to 15 months’ imprisonment on that count and six months on the breach count, to run concurrently.