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Double jeopardy

Abuse of process

  1. A person may not be tried for a crime for which s/he has previously been acquitted or convicted, or in respect of which s/he could, on the same previous indictment/summons have been lawfully convicted, where the offence charged in the second indictment/summons was committed at the time of the first charge1. This means that the principle is strictly applicable only where the same offence in fact and in law is alleged in the second indictment2. In this situation the defendant enters a plea of ‘autrefois acquit’ (if s/he was acquitted in the first prosecution) or ‘autrefois convict’ (if s/he was convicted). If the court rules that the plea is correct, the indictment or charge is invalid and is dismissed3.
  2. However, where a person is prosecuted for an offence arising out of the same or substantially the same facts as a previous prosecution, this is not an example of the above doctrine, which gives the accused an absolute right to relief. It may, however, constitute an abuse of process, which entitles a judge to exercise his/her discretion to stay the proceedings. That discretion should be exercised in favour of an accused unless the prosecution establishes that there are special circumstances particular to the case for not doing so4.
  3. The circumstances that could be considered as arising out of substantially the same facts may be relatively broad. A prosecution brought by both the HSE and the Environment Agency for unsafe asbestos removal and un-licensed removal/disposal of the asbestos respectively would probably need to be taken jointly to avoid a successful application to stay proceedings on the ground of abuse of process.
  4. There was, for example, an abuse of process when the CPS prosecuted a person for manslaughter in circumstances where he had already been prosecuted by the HSE for health and safety offences in relation to a defective gas installation that caused a fatality5. The Court of Appeal in Beedie considered that, in the absence of special circumstances, the second prosecution should be halted. The public interest in a manslaughter prosecution and the concerns of the victim’s family did not give rise to special circumstances6.
  5. The Beedie case led to the development of the Work Related Deaths Protocol [PDF 60KB] PDF which has been agreed between HSE, the Association of Chief Police Officers, the British Transport Police, the Local Government Association and the CPS. The protocol is designed to ensure effective liaison between the signatories in order to avoid the problems in Beedie, where there has been a work-related death.
  6. In cases where there has not been a fatality but more than one investigation or prosecution agency has an interest, inspectors will need to be proactive to ensure that, prior to the institution of any proceedings, there is consultation between the agencies. There will need to be a joint decision as to what charges should be brought, and a coordinated approach on the timing of any prosecutions.

Footnotes

  1. Connelly v. DPP [1964] A.C. 1254, HL.
  2. R v. Beedie [1997] 2 Cr. App. R. 167, CA.
  3. Qualified exceptions to the doctrine have been introduced: see the Criminal Procedure and Investigations Act 1996, sections 55 to 57 - acquittals tainted by intimidation; see also the Criminal Justice Act (CJA) 2003, sections 75 to 97 - retrial of persons acquitted of the serious qualifying offences set out in schedule 5 (which do not include health and safety offences).
  4. [1997] 2 Cr. App. R. 167 at 176, per Rose L. J.
  5. R v. Beedie [1997] 2 Cr. App. R. 167, CA.
  6. [1997] 2 Cr. App. R 167 at 176, CA.