Adam Vaitilingam KC, leading Ehsanul Oarith, and Emily Heggadon (led by Jacob Hallam KC of 6 KBW), recently appeared in the Court of Appeal in the case of R v Donaldson [2026] EWCA Crim 441.The Court of Appeal held that there is no bright‑line rule preventing the prosecution from adding a more serious charge after conviction but before sentence. Whether doing so constitutes an abuse of process depends on a fact‑sensitive assessment of fairness and oppression under limb 2 abuse principles.
The Court of Appeal had to consider issues of public interest. In particular, the competing interest for charges to be brought which reflects the seriousness of an individual’s conduct and on the other hand public interest in the individual knowing the charges they have to face.
The question for the Court was when and in what circumstances may the prosecution remedy its original under-charging of a defendant by adding the more serious charge that reflects the seriousness of the conduct?
Background
The appellant was charged with careless driving and associated summary offences and pleaded guilty in the Magistrates’ Court. Prior to sentence, the prosecution added a charge of dangerous driving arising from the same facts. The case was sent to the Crown Court, where an application to stay the indictment as an abuse of process was refused.
In the Crown Court, the Judge ruled that there was no abuse of process. The authorities which prevent bringing additional charges only apply once the proceedings have concluded. As the proceedings did not conclude, the prosecution was able to bring the second charge of dangerous driving whilst he awaited sentence for careless driving offence for the same conduct.
Following that ruling, the defendant pleaded guilty plea. At the sentence hearing, the Crown Court Judge still had to deal with the fact that the defendant remained convicted of careless driving. He sat under section 66 of the Courts Act 2003 and vacated the appellant’s plea to careless driving, at which point it was withdrawn by the prosecution.
The Appeal
Ehsanul pursued the matter in appeal and was granted leave by the single Judge following written submissions. Emily was instructed by the CPS to draft the response for the prosecution. Silks were instructed for each side at the Court of Appeal.
In the Court of Appeal, Adam and Ehsan argued that the Crown Court’s decision was wrong and that this was a situation akin to autrefois convict. They argued that the principles arising out of Elrington in 1861 and subsequently DPP v Connelly [1964] AC 1254, remain good law. Following conviction, bringing a charge on the same facts amounted to an abuse of process
They relied on the recent authority of Canatar [2025] EWCA Crim 611. Based on that authority, Adam and Ehsan also argued that the Crown Court should not have vacated the defendant’s plea to careless driving, as the effect of doing so was “to rescue the prosecution from a muddle of their own making”, and that this was contrary to the dicta in R v Gould and others [2021] EWCA Crim 447 (see paras 107-112 in particular regarding vacating pleas).
Emily and her leader argued in response that the principles arising from Elrington did not apply because the first set of proceedings had not yet ended. They argued that authorities such as Canatar were fact-sensitive and did not establish any principle which should affect the outcome of this particular appeal. They also argued that given the situation the Crown Court Judge found themselves in, and having ruled there was no abuse of process, it was a proper use of his powers to vacate the guilty plea to careless driving.
Judgment
Following the hearing, the Court of Appeal handed down judgment recently.
On the issue of whether the principles apply from the point of conviction or only after the end of proceedings, the Court of Appeal decided there is no immutable rule tying abuse to the moment of conviction. The Court confirmed that fairness, not formality, governs the assessment of whether there is an abuse of process.
After reviewing the previous authorities, Stuart-Smith LJ noted that the guiding principles to be applied in a case such as this are those that are well-established when addressing limb 2 abuse. As they held,
“there is no rule of law that further charges may not be preferred after the moment of conviction, whether on a person’s plea of guilty or on conviction by a jury. What matters is the court’s sense of justice and propriety would be offended or confidence in the criminal justice system undermined if the further charges were not stayed. Evidently, the further the first set of proceedings have progressed, the more likely it is to be arguable that preferring further charges would be an abuse of process”. [para 35]
The Court of Appeal held that limb 2 abuse was not shown in this case. In this case, the appellant had not been sentenced and had not acted to his detriment in any way that made it unjust or oppressive to bring the further charge. There was possibility to adjust the proceedings without causing injustice to the appellant.
The Court’s approach to ultimately consider limb 2 abuse gives rise to the question of how it reconciles with the principle in Beedie, which established that the burden was on the Crown to establish special circumstances whereas in a usual abuse argument the burden lies on the defendant.
The judgment made no reference to the dicta in Gould, that the power to vacate a plea of the accused should not be used to rescue the Crown from a muddle of their own making. The Court clearly deemed that in this case it was fair to do so.
Lesson learned:
- The fact that the proceedings have not concluded in itself is not a bar to raising an argument of abuse where additional charges are brought. There is no bright line between pre- and post-conviction.
- The later in the proceedings it is done, the more likely it is arguable that it would be an abuse of process. The question ultimately is whether the decision to add the further charge causes injustice and oppression.
Adam and Ehsan were instructed by Hannah Cosbie of Sansbury Douglas Solicitors. Emily was instructed by the CPS.
To instruct any of the counsel involved in the case please contact our clerks at clerks@albionchambers.co.uk
