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Law Report: Defendant was never in jeopardy - Regina v Dabhade. Court of Appeal (Criminal Division) (Lord Justice Stuart-Smith, Mr Justice Leonard and Mr Justice Wright), 29 July 1992

A defendant could not rely on the principle of autrefois acquit in respect of a charge which had been formally dismissed, and replaced with another more appropriate charge, as part of a reorganisation of the prosecution case, because in such circumstances he was never in jeopardy of conviction on the original charge.

The Court of Appeal (Criminal Division) dismissed an appeal by the defendant against his conviction, in May 1991 at Middlesex Guidhall Crown Court, for theft.

Stuart Trimmer (assigned by Registrar of Criminal Appeals) for the appellant; Roger Turner (CPS) for the Crown.

MR JUSTICE WRIGHT, reading the judgment of the court, said the appellant was initially charged, under section 15(1) of the Theft Act 1968, that he dishonestly obtained pounds 6,000 cash by falsely representing himself as the payee on a cheque. He appeared before a stipendiary magistrate, elected summary trial and pleaded not guilty. The case was adjourned.

At the adjourned hearing, a further charge was preferred, namely theft of the pounds 6,000, contrary to section 1. The magistrate declined jurisdiction and, dealing with the matter as an examining justice, committed the appellant to the Crown Court for trial. On the same day, the prosecution offered no evidence on the first charge, which was dismissed.

At the Crown Court, defence counsel argued that the Crown ought not to proceed on the indictment because the appellant had been lawfully acquitted of the offences therein.

That contention was rejected and the trial continued to the appellant's conviction.

He now contended that the judge's rejection of his plea in bar was wrong in law: the two charges were substantially the same, and the dismissal of the first had the same effect as an acquittal.

In their Lordships' judgment, the following principles applied:

(1) For the autrefois principle to apply, the defendant must have been put in jeopardy. He must show that the earlier proceedings relied upon had been commenced, either by plea in summary proceedings or by his being put in the charge of the jury in a trial on indictment.

(2) If, thereafter, a charge or count was dismissed, albeit without a hearing on the merits (if, for example, the prosecution was unable to proceed), it was well established that the prosecution might not later institute fresh proceedings on the same or an essentially similar charge or count.

(3) If the charge or count was summarily dismissed because it was apparent to the prosecution that it was defective, either in law (for example, for duplicity) or because there was insufficient evidence to sustain a conviction, then it could not be properly said that the defendant had ever been in jeopardy of conviction.

(4) If the context in which a charge was summarily dismissed was a rationalisation of the prosecution case, involving the substitution for one charge of another, regarded as more appropriate to the facts, then the consensual dismissal of the original charge would not give rise to the application of the doctrine of autrefois acquit.

To hold otherwise would be contrary to common sense.

In this case, the first charge was so fundamentally incorrectly framed that the appellant had in no real sense ever been in jeopardy of being properly convicted upon it.