Ehsanul Oarith recently succeeded in having proceedings stayed as an abuse of process when he represented a defendant facing a second prosecution arising out of the same incident.
The case was brought against two defendants. In June 2023 they had allegedly committed several offences against the same complainant in a single night. One defendant was said to have assaulted the male complainant and stolen his vehicle keys. The other defendant then took the vehicle without consent. Both were prosecuted in the Magistrates’ Court for these offences and for further offences committed after the car was taken.
At trial the complainant did not attend, causing the prosecution to accept a package of pleas to certain offences and to offer no evidence in respect of others.
Months later, a fresh set of proceedings was initiated. This time one of the defendants was charged with a robbery in which a bracelet was taken and criminal damage of a phone. The second defendant was charged with subsequent handling of the bracelet. All of these offences were alleged to have occurred during the same night as before and involved the same complainant. The evidence of these offences had been available to the prosecution during the first set of proceedings; indeed the relevant statements had been served as evidence.
Ehsanul made an application to stay the indictment, relying on the long-established principles set out in case of Elrington, an authority dating back to 1865, and DPP v Connelly [1964] AC 1254, where Lord Devlin stated:
“as a general rule, a Judge should stay an indictment when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried…but a second trial on the same or similar facts is not always oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case”.
In Archbold 2025 (para 4-88) the editors suggest that such situations are analogous to autrefois convict or autrefois acquit, but do not fall within those narrow doctrines as the second set of proceedings involve different offences in law. In such situations, the Court can step in to prevent injustice by exercising its wider discretionary power to stay proceedings. More recent authorities such as R v Wangige [2020] EWCA Crim 1319 and Canatar [2025] EWCA Crim 297 support this proposition.
Ehsanul argued that the robbery and handling offences clearly arose out of the same incident for which the defendants had already been prosecuted. The prosecution resisted the application, contending that the actions for which the defendants were now being prosecuted, i.e. the forceful taking of the bracelet and its subsequent handling, were factually distinct and could properly form the basis of a new indictment.
The Judge accepted the defence submission advanced by Ehsanul and stayed the whole of the second indictment. He ruled that a minute analysis of the incident was not appropriate. Rather, the correct approach was to look at the factual matrix holistically and to assess whether the offences arose out of the same incident.
This is in line with the recent decision in R v Wangige [2020] EWCA Crim 1319, where Davis LJ said that “a more holistic approach, by reference to all the circumstances, was required in assessing whether the charges arose out of the same incident”.
With the criminal justice system locked into a seemingly constant state of crisis, it is increasingly common to see piecemeal charging decisions. This is particularly true where charges might be brought in haste to avoid running out of time in respect of summary offences. Ultimately, however, the responsibility lies with the prosecution to determine the appropriate charges and to ensure they are tried properly at the first attempt. As Clarke LJ made clear in Phipps [2005] EWCA Crim 33:
“the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident. Any other approach is unfairly oppressive to a defendant. It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course.”
Where the conduct of the Crown offends against this principle, defence advocates should be aware of the potential remedy of a stay and be prepared to identify appropriate cases before clients are advised as to their pleas.
Ehsanul Oarith prosecutes and defends cases across the full spectrum of criminal law. To instruct Ehsanul please contact our clerks at clerks@albionchambers.co.uk
