Neutral Citation Number: [2009] EWCA Crim 1424
Case No: 2008/05623/C2(1)
2009/00187/C2(2)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HIS HONOUR JUDGE GILMOUR QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/07/2009
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE SIMON
and
MR JUSTICE BLAIR
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Between :

	R		
	- v -		
	Gore (1)		
			
	R		
	-v-		
	Maher (2)		

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Mr C Lander for the Appellants
Mr R. Jones for the Crown

Hearing dates : 1st July 2009
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Judgment

 The Lord Chief Justice of England and Wales
1.	These appeals against conviction were dismissed on 1 July 2009.
2.	The convictions of Raymond Gore and Timothy Maher arose from an incident in Liverpool City Centre on 28 October 2007.  At about 2.00 am a young man, Steven Smith, was assaulted by a group of young men in the City Centre.  The incident was captured on CCTV.  This showed a group of young men chasing Mr Smith.  In the course of the chase he fell to the ground.  While there he was punched and kicked.  He appeared dazed, and for a while afterwards he was probably semi-conscious. 
3.	Police officers were alerted to the disturbance by the CCTV operators.  They did not examine the CCTV material itself, they relied on the reports of an unpleasant incident in the street.  They went straight to the scene.  They found Mr Smith.  They saw that he had a cut to the face, and heard that he was complaining of a sore arm, and noticed that he was somewhat confused.  It was not then appreciated, and there was no reason why it should have been appreciated, that his elbow was fractured, and that two operations would later be required.  At that time there was no sufficient justification for arresting either man on the basis that grievous bodily harm had been inflicted on or caused to Mr Smith.
4.	Gore and Maher were detained nearby.  Mr Smith said to the police that he did not wish to make a complaint, but he was later unable to remember having said this.  Gore admitted to being involved in an altercation in a public place while he was drunk.  A Fixed Penalty Notice was issued to him for that offence, contrary to section 91 of the Criminal Justice Act 1967 (this being one of the penalty offences specified in section a of the Criminal Justice and Police Act 2001, the “2001 Act”).  This was issued at 2.38 am on 28 October.  A similar notice, but relating to an offence of behaviour likely to cause harassment alarm or distress, contrary to section 5 of the Public Order Act 1986 was issued to Maher at 2.40am.  Fixed penalty notices cannot be issued for offences involving grievous bodily harm or wounding contrary to section 18 or section 20 of the Offences Against the Person Act 1861.
5.	On the following day the police reviewed the CCTV evidence.  It was decided that the fixed penalty notices were inappropriate.  A criminal investigation was ordered, at first for affray.  Mr Smith was not an enthusiastic witness, but on 14 November a statement was taken from him.  Gore was arrested and interviewed on 8 and 22 November.  Maher was arrested and interviewed on 22 November.  They were both charged on 5 January 2008 with inflicting grievous bodily harm on Mr Smith.
6.	On 9 September 2089 applications were made to His Honour Judge Gilmour QC at Liverpool Crown Court to stay the indictment as an abuse of process.  In a carefully reasoned decision, Judge Gilmore refused the application.  Thereupon Gore pleaded guilty to inflicting grievous bodily harm.  Maher was tried and convicted by the jury of the same offence.  Sentence has been adjourned pending the outcome of these appeals.
7.	The appeals against conviction are founded on the proposition that the refusal to stay the indictment against the appellants as an abuse of process was wrong in law.  The argument arises from the issue of the fixed penalty notice for disorder by the police at the scene for what is said to be the identical conduct for which the appellants were prosecuted before the Crown Court.  In light of the relevant provisions of the 2001 Act, and the linked statutory guidelines as well as the analogous case law, the criminal proceedings are unfair and therefore constitute an abuse of process.
8.	The principle against sequential trials, or a series of trials which would have the effect of punishing a man twice for an offence arising out of the same or substantially the same fact, is well understood.  See R v Elrington (1861) 1 B. & S. 688, as explained in Connolly v DPP [1964] AC 1254 : R v Beedie [1997] 2 CAR 167.  It is equally well understood that where a defendant has been given an unequivocal assurance that he will not be prosecuted and has acted on that assurance to his disadvantage, that, too, may found an abuse of process argument (H v Guildford Youth Court [2008] EWHC 206: R v Abu Hamza [2007] 1 CAR 27).  Both principles are said to be engaged.
9.	Section 2(4) of the 2001 Act defines a penalty notice.  It means “a notice offering the opportunity, by paying a penalty…to discharge any liability to be convicted of the offence to which the notice relates”.  Thus the notice provides the opportunity to a potential defendant to discharge any possible liability to conviction on payment of the penalty.  The liability is discharged on payment of the penalty.  Section 3(3)(b) requires the notice to state the alleged offence and (c) requires particulars of the offence to be given.  Section 5 provides a general restriction on proceedings.
“(1) Proceedings for the offence to which a penalty notice relates may not be brought until the end of a period of 21 days beginning with the date on which the notice given (“the suspended enforcement period”)
(2)  If the penalty is paid before the end of the suspended enforcement period, no proceedings may be brought for the offence”. 
For this purpose ‘proceedings’ is a reference to a criminal prosecution.  These legislative processes are all concerned with the implementation of the processes which relate to the offence specified in the notice.
10.	Section 6 permits the Secretary of State to issue guidance about the issuing of penalty notice, and the way in which constables should exercise the discretion to do so.  A number of provisions in the guidance have been drawn to our attention.  In the context of the “overview of the Scheme” it is stated that “…Once an officer has issued a notice, the decision to issue has been made and no alternative should then be considered”.  It is further stated at paragraph 8.4 that “where a penalty notice is issued and it subsequently comes to light after the incident that a more serious or non-penalty offence was committed on the same occasion, officers may bring a charge for the subsequent offence.  Payment of a penalty discharges the recipient’s liability to conviction only for the offence for which the penalty notice was issued.  Ultimately it will be for the CPS to determine, based on the facts of the case, whether a prosecution may be brought, in respect of the subsequent offence, and for the courts to decide whether or not to allow such prosecution”.  In this context the reference to subsequent offence means a reference to a more serious or non-penalty offence coming to light after the issue of a notice.
11.	The penalty notice scheme provides a useful method for dealing with low level crime, for example, the sort of public disorder which occurs in city centres at night, which is troublesome and anti-social, without involving serious criminality.  Payment of the penalty involves no admission of guilt on the part of the person to whom it is given, nor does it create a criminal record.  These are important limitations.  
12.	Mr Lander on behalf of the appellants suggested that there was no reason to criticise the police officers for issuing fixed penalty notices.  They had been told about the nature of the incident, and appreciated from the reports made to them that it involved a number of men attacking one man.  Thought was given to whether notices should be issued, and a decision to do so was made after communications with more senior officers.  Mr Lander accepted that none of the officers involved in the process had seen the CCTV material for themselves, and further that none of them was aware of the fact that the victim had suffered a fracture of the elbow.  However, he says that they should have appreciated from the fact that Mr Smith was complaining of a sore arm, that the injury was or should have been treated as a serious one.  In these circumstances it was unfair for the appellants to be prosecuted for the same conduct which had led to the issue of the fixed penalty notices.
13.	The first problem with the submission is that the officers at the scene were acting on the basis of reports to them of an incident, rather than the evidence actually provided by the CCTV.  No complaint of an assault was made to them.  They did not appreciate, and there was no reason why they should have appreciated, the extent of the injury sustained by Mr Smith.  Contrary to Mr Lander’s submission, “all the facts” were not known at the time when the notices were issued.   In short, the evidence to sustain an arrest and possible charge for causing or inflicting grievous bodily harm was very thin.  In fact, as Judge Gilmour found, the suggestion that the police knew that Mr Smith had suffered grievous bodily harm is fanciful.  What is more, if such evidence had been available then a fixed penalty notice would be wholly inappropriate.
14.	There is a further problem.  The notice which was issued undoubtedly arose out of the same incident which was ultimately prosecuted as a serious offence of violence.  The notice received by each appellant did not suggest that he had committed any such offence or that by paying the penalty, his liability to be convicted of an offence of violence would be discharged.  The physical altercation in a public place to which the notice to Gore referred did not involve an allegation of assault, and indeed at the scene, Gore had suggested that his involvement represented self-defence.  The notice to Maher involved an assertion of anti-social behaviour, again, not assault.  Ignoring the relevant provisions in the guidance issued by the Secretary of State under section 6 of the 2001 Act, there is nothing whatever in the statute which suggests that the issue of a penalty notice asserting one offence, and the payment of the penalty, relieves the recipient of any possible further proceedings if and when it becomes apparent that a more serious, and in particular a non-penalty offence has in fact been committed.  Nothing in the text, and nothing said at the scene, carries or carried any such implication.  And indeed, as it would seem to us, even if the officers issuing the notice, or those who instructed them to do so, had been fully in possession of all of the facts, it is questionable whether the passages in the guidance referring to “the subsequent offence” would be sufficient to preclude the possibility of further reconsideration of any such decision.  What is abundantly clear is that the terms of the 2001 Act only preclude a prosecution for an offence in relation to which a notice was issued. 
15.	Mr Lander drew attention to Jones v Whalley [2007] 1 AC 63, where a private prosecution was brought by the victim against the perpetrator of an assault.  The officer in the case had issued a non-statutory caution, and the offender was not prosecuted.  At the time when the private prosecution began, the caution had not been quashed.  In the House of Lords it was decided that such a prosecution could not be brought while the caution was still in existence.  As Lord Bingham said, “…So long as that formal caution stood, induced by a representation that he would not be prosecuted, the private prosecution of Mr Whalley did in my opinion amount to an abuse of process”.  It is however significant that unlike the present case, the subject of the caution and the intended prosecution were for the same offence, that is, assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1961.  What is more no representation was made in the present case to these appellants that, if a penalty notice were issued and the penalty paid, they would not then be prosecuted for any other offence.  The conclusion in Jones v Whalley does not apply to the present situation.  
16.	There is a great deal of force in the judgment of the Divisional Court in Guest v Director of Public Prosecutions [2009] EWHC 594, where the Director of Public Prosecutions was directed to reconsider a decision that a potential defendant should be prosecuted for assault occasioning actual bodily harm, when he had been given an inappropriate conditional caution for the offence.  The court rejected the argument that if the decision not to prosecute and the conditional caution were quashed, any subsequent prosecution would fail on abuse of process grounds.  As Goldring LJ explained, “criminal litigation is not a game…it does not seem to me that, …a further prosecution would necessarily amount to an affront to public justice…indeed, many might think that what so far has happened deserves that description.”  Naturally, and indeed we emphasise, decisions in this type of case involve the application of well understood principles to fact specific situations.  There was here no improper escalation of charge, nor any departure from any reasonable expectation that either appellant would not be prosecuted, if any more serious consequences of their conduct, and evidence justifying prosecution for an offence of violence came to light after the issue of the notice.  The reality is that on the night in question the defendants must have been thanking their lucky stars that they got away with the serious violence they had perpetrated.  It was not an abuse of process for justice to catch up with them.
17.	We agree with the decision reached by Judge Gilmour when the matters were considered by him.  He explained his reasons in a carefully structured judgment.  We agree and endorse his conclusion.