When Might Two Offences be Founded on the Same Course of Conduct?

Introduction

While the judgement in Hamer is relatively brief (a mere nineteen paragraphs), it is nevertheless concerned with an important issue which arises from time to time in criminal trials, i.e., whether a defendant is liable to be convicted for alternative offences in respect of the same conduct. The willingness of governments in recent times to enact ‘new’ offences covering conduct which has already been criminalised, or to provide for aggravated versions of existing basic offences, inevitably increases the potential for double punishment of a single wrong. In R (Dyer) v Watford Magistrates Court [2013] EWHC 547 (Admin), where the appellant had been convicted of both racially aggravated causing fear or provocation of violence (contrary to s.31(1)(a) of the Crime and Disorder Act 1998) and of causing fear or provocation of violence (contrary to s.4 of the Public Order Act 1986), Laws LJ remarked that to convict a person twice for the same conduct was ‘unfair and disproportionate’. He continued thus:

‘It is not a matter of being punished twice. The double conviction is of itself unfair. It must be basic to our system of criminal justice that a persons’ criminal record should reflect what he has done, no more and no less. That is fair and proportionate. To convict him twice for a single wrong offends this basic rule’ (at [11]).

In a shorter judgement in Dyer, in which he agreed with Laws LJ, Hickinbottom J opined:

‘It seems to me to be repugnant to justice and not the law of this jurisdiction for a defendant to be found guilty of two offences arising from the same facts, where one offence contains all the elements of the other, together with an additional or aggravating element’ (at [14]).

The Authorities

Since the issue raised by the appeal in Hamer was not novel, both sides were able to rely on authority to support their submissions before the Court of Appeal. In the ‘discussion’ section of the Court's judgement, Bennathan J therefore indicated that ‘the courts’ refusal to permit an accused to be convicted twice for the same offence is long established’ (at [13]). In support of the comment, he referred to the House of Lords decision in Connelly v DPP [1964] AC 1254, where in delivering the leading judgement, Lord Morris of Borth-y-Gest set out nine guiding principles relating to the plea of autrefois acquit. The significance of the case in the present context, however, lies in the fact that as Bennathan J explained, ‘the House went on to identify a broader principle whereby the criminal courts have the power to prevent a prosecution for the same conduct where such a course would be unjust or oppressive’ (at [13]). Thus, the Court of Appeal in Hamer was called upon to decide whether it had been unjust and oppressive to convict the appellant of two offences in respect of the same incident involving the possession of a knife.

In addition to Dyer, the appellant also relied on R v McEvilly [2008] EWCA Crim 1162 and R v Ismail [2019] EWCA Crim 290. In the former, a procedural error by the trial judge meant that the jury had found the appellant guilty of an alternative lesser offence (wounding with intent, contrary to s.18 of the Offences Against the Person Act 1861) and had then reconsidered a count of attempted murder (contrary to s.1(1) of the Criminal Attempts Act 1981) in respect of which it had initially found the appellant ‘Not guilty’. As Keene LJ observed, ‘the judge should not take a verdict on the less serious count until finality has been reached on the more serious charge’ since otherwise, there is a ‘serious risk’ of ‘charges in the alternative leading to a multiplicity of convictions’ (at [12]). Importantly, however, the Court of Appeal in McEvilly did not regard the verdict as being unsafe due to the procedural error. In Ismail, Holgate J explained the procedure which a court ought to follow in order to prevent a ‘multiplicity of convictions’ for alternative offences as follows:

‘When a defendant pleads guilty to a lesser offence, and the more serious alternative proceeds to trial, the correct practice at that stage is that the court should simply record the guilty plea. If the defendant is acquitted of the more serious offence, he can then be sentenced on the count to which he had pleaded guilty, which will rank as a conviction from then on. But if the defendant is convicted by the jury on the more serious offence, he will be sentenced on that matter and the court should order that the alternative offence to which he had previously pleaded guilty should lie on the file’ (at [21]).

As Holgate J then noted, adopting this practice ‘avoids a defendant being convicted of two alternative offences for the same criminal conduct’ (at [22]). Of course, in Hamer, unlike in either McEvilly or Ismail, the appellant had not been charged with alternative offences but with what was regarded by the prosecution as separate and distinct offences. Although the Court of Appeal did not say as much, this distinction meant that the authorities relied upon by the appellant were only of limited value to the determination of the appeal.

In seeking to convince the Court of Appeal that the appellant's conduct had two separate and distinct aspects which justified the convictions on two counts, counsel for the respondent relied on R v H, Stevens and Lovegrove [2006] 2 Cr App R(S) 68. In determining three appeals involving issues relating to Antisocial Behaviour Orders (ASBOs), Sir Igor Judge (then President of the Queen's Bench Division) recognised that behaviour which was in breach of an ASBO was ‘a distinct offence on its own right’ (at [27]), and that it may also involve the commission of a separate offence. Thus, on the facts of the appeal in Stevens, whilst being drunk in a public place was a crime, it was also contrary to a prohibition in an ASBO which had been imposed on the appellant.

The Decision

In Hamer, the Court of Appeal formed the conclusion that the prosecution had acted properly in pursuing two offences in respect of the same course of conduct for three reasons. The first related to the fact that in having a knife with him in a public place, the appellant had committed two legally distinct offences simultaneously. Thus, in making it an offence to breach a KCPO (s.29 of the 2019 Act), Parliament must have appreciated that there were likely to be occasions when the behaviour in question would also amount to a separate offence. However, as the Court of Appeal noted, there are ‘also courses of conduct that would commit one but not both offences’ (at [15]). The KCPO in Hamer was far-reaching in that it prohibited the appellant from carrying, ‘any knife or bladed article in any public place (save for an item of cutlery provided by a restaurant, café or like establishment for its customer's use for the purpose of dining in, and only for the time that he is a customer within those premises)’ (at [1]). This meant, for example, that whereas the appellant would have been in breach of the KCPO had he been in possession of a ‘folding pocketknife’ (for the meaning of which see, most recently, Sharma v DPP [2019] 2 Cr App R 13) with a blade of less than 3 inches in a public place, rather than the lock-knife which he did in fact have, the same behaviour would not have amounted to an offence contrary to s.139 of the Criminal Justice Act 1988: see s.139(2) and (3).

A second reason for dismissing the appeal against conviction was previous ‘direct authority’ from the Court of Appeal itself. Thus, in R v Hartnett [2003] EWCA Crim 345, where the appellant had pleaded guilty to the offences of driving with excess alcohol in his blood (contrary to s.5(1) of the Road Traffic Act 1988) and dangerous driving (contrary to s.2 of the 1988 Act) in respect of the same event, it was accepted that in principle, there had been nothing improper about charging and pursuing both offences. As Bennathan J noted in Hamer, the decision in Hartnett was subsequently approved in R v Arnold [2008] 2 Cr App R 37. In that case, in what were obiter remarks, Hughes LJ observed:

‘… sometimes the presentation of different charges in the same court, arising from the same facts, is positively the right thing to do since it may enable the tribunal of fact to determine the several issues which arise – for example whether driving was dangerous because of the manoeuvre undertaken or also because of the driver was unfit through drink, or, in an allegation of homicide, which party was at the outset carrying a firearm which was used’ (at [35]).

The Court of Appeal's third and final reason for dismissing the present appeal amounted to an endorsement of an observation made by the trial judge, i.e., that a KCPO would serve little purpose if proceedings for its breach were treated as adding nothing to a further count founded on the same conduct. As Bennathan J explained, were this the case ‘the effect would be to undermine and devalue orders such as the KCPO’ (at [17]). In the Court's judgement, where a court order has been breached, as occurred on the facts of Hamer, there was ‘a need for that breach to be established and recorded, as any judge dealing with such an offender in the future ought to know that on a previous occasion an order has been ignored’ (at [17]).