R v Joshua Donaldson

There is a public interest in criminal charges brought against an individual properly reflecting the seriousness of that individual’s alleged conduct. There is also a public interest in the individual knowing the charges they have to face; and it has been well established since the decision of Cockburn LJ in Elrington in 1861 that “if a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.” These interests may come into conflict where a party has been accused of a minor offence but the facts alleged against them would on proper analysis justify the bringing of charges that are more serious than thoseoriginally brought.

As we shall explain below, this is such a case. It raises once again the question: when and in what circumstances may the prosecution remedy its original under-charging of a defendant by adding (in the same or separate proceedings) the more serious charge that better reflects the seriousness of the conduct alleged against them? In the authorities this issue is often expressed rather differently: when and in what circumstances may the prosecution be prevented from bringing or proceeding with a second charge founded on the same facts as have been relied upon by the prosecution as the foundation of charges that have already been brought? The answer to each formulation is often couched in terms that include the assertion that bringing or proceeding with a new charge would be an abuse of process. That phrase, however, does nothing to explain when and in what circumstances the bringing of a new charge will or will not be regarded as an abuse of process. This is not least because such cases and the application of the relevant principles are intensely fact sensitive. For that reason we first outline the facts of the present case before addressing the application of relevant principles in decided cases and then applying the relevant principles to the facts of this case.

In briefest outline, after a collision and ensuing altercation the appellant pleaded guilty at the Magistrates’ Court to the offences of careless driving, criminal damage and assault by beating. On the day that he was due to be sentenced by the Magistrates for those offences, the prosecution added a further (either-way) charge of dangerous driving based on the same driving as had been the foundation for the original (summary-only) charge of careless driving. The appellant elected to be tried in the Crown Court. At the initial hearing in the Crown Court in Bristol an application was made on his behalf to stay the proceedings because, he submitted, the bringing of the charge of dangerous driving was an abuse of process. The Judge, HHJ Cullum refused the application. Following and in the light of the Judge’s ruling, the applicant pleaded guilty to the single count of dangerous driving. He appeals against that conviction with the leave of the single judge on the basis that the Judge erred in refusing the application to stay the proceedings. It is common ground that, if the Judge should have stayed the proceedings, the appellant’s conviction should be quashed, notwithstanding that it resulted from an unequivocal guilty plea: see R v T [2022] EWCA Crim 108 at [160]; R v Nuh Bihe [2022] EWCA Crim 939 at [1].

There is one ground of appeal, namely:

At this point it is sufficient to record that much of the argument has focussed on whether it is material that, although he had pleaded guilty before the Magistrates, he had not been sentenced for the offence of careless driving when the charge of dangerous driving was preferred. The prosecution submits thatthe fact that he had not yet been sentenced is material to the application of relevant principles. The appellant’s case is that what matters is that he had been convicted.

It is not necessary to set out the facts of the collision and subsequent altercation on 31 July 2023 in any detail. The first relevant procedural step was that, on 24 January 2024, the appellant was charged with three summary-only offences: driving without due care and attention, criminal damage, and assault by beating. Nothing need be said about the facts of the last two offences. All that needs to be said about the appellant’s driving is that the facts known from the outset and alleged to constitute careless driving by the appellant could also have justified the bringing of a charge of dangerous driving. This is not a case of after-acquired knowledge provoking the bringing of the more serious charge.

On 29 February 2024, the appellant appeared before the Bristol Magistrates’ Court and entered not-guilty pleas for all three summary-only offences. The case was listed for trial on 29 April 2024. On the morning of the trial, 29 April 2024, the appellant entered guilty pleas for all three offences. The case was adjourned for sentence, and the Court ordered that a Pre-Sentence Report be prepared.

The first date for the sentence hearing was ineffective. On 7 June 2024, the case was list was before DJ Matthews. On that occasion, upon invitation from the District Judge, the Crown decided to lay a further charge of Dangerous Driving. This was not done by an application to amend the existing information or charge. It was a new charge preferred whilst the defendant remained convicted of the careless driving, assault and criminal damage. The appellant entered a not-guilty plea to dangerous driving and elected that the matter be sent to the Crown Court for trial. Accordingly, the dangerous driving offence was sent to the Crown Court for trial under s.51(1) & (2) of the Crime and Disorder Act 1998. The other offences to which the defendant had already pleaded guilty were committed to the Crown Court for Sentence purportedly pursuant to section 20 of the Sentencing Act 2020. The prosecution later conceded (and it is common ground) that this committal was flawed as there was no power to commit summary-only offences for sentence with the either-way matter when it was committed for trial. The offence of careless driving therefore remained in the Magistrates’ Court as the purported committal was a nullity.

The matter then came before the Crown Court on 10 July 2024. The appellant applied for the proceedings to be stayed because they amounted to an abuse of process. The application was heard by HHJ Cullum on 2 October 2024 and was refused. In thelight of that ruling, the appellant entered a guilty plea to the count of dangerous driving. It is the Judge’s ruling on 2 October 2024 that is the focal point of this appeal.

On 23 October 2024, exercising his powers pursuant to section 66 of the Courts Act 2003, the Judge vacated the guilty plea that the appellant had entered in the Magistrates Court to the charge of driving without due care and attention, whereupon the Crown withdrew that charge. The Judge then sentenced the appellant to a Suspended Sentence Order comprising 16 months imprisonment suspended for 18 months with an unpaid work requirement of 80 hours and a rehabilitation activity requirement of not more than 40 days. He was disqualified from driving for 18 months and until an extended test of competence had been passed.

We will return to the Judge’s 2 October 2024 ruling after outlining the submissions of the parties. On the appeal before us, the appellant was represented by Mr Vaitilingam KC, who did not appear in the court below, and Mr Oarith, who did. The prosecution was represented by Mr Hallam KC, who did not appear in the court below, and Ms Heggadon, who did. We heard the appeal on 10 February 2026 and reserved our decision and our reasons. This is our reserved judgment on the appeal.

The appellant submits that the appeal is governed by the principle in Elrington, which we have summarised at [1] above, together with the decision of this court in Beedie (1987) 2 Cr App R 176 where Rose LJ said that:

The appellant submits that the principle applies to a sub-category of cases that are akin to cases of autrefois convict or acquit. The appellant submitsthat there is no authority directly on the point whether the principle applies when a defendant has pleaded guilty but not been sentenced. The appellant’s case is that the principle applies from the point of conviction or acquittal and not from the point of sentence. In support of that submission, he relies upon dicta which refer to the principle applying after the accused has been “tried” (Lord Devlin in Connelly v DPP [1964] AC 1254, 1259-1260), or raising the question whether a second trial can properly follow “an acquittal or conviction” (Lord Pearce, ibid at 1364, see also R v Forest of Dean Justices (ex parte Farley) [1990] RTR 228 per Garland J). In addition, the appellant submits that we are bound by the decision of this Court in R v Canatar [2025] EWCA Crim 611 to uphold the appeal.

The prosecution accepts that, if the present case is akin to a case of autrefois convict, it would be for the Crown to establish special circumstances justifying the continuation of the proceedings. That said, the prosecution does not accept that the present case either is or is akin to a case of autrefois convict. It submits that the Elrington principle applies where, after final disposal in one trial, the prosecution seeks to try the defendant on another charge arising from the same or substantially the same facts. And it submits that Canatar is a decision on its own particular facts, which cannot be extrapolated so as to bind us in the different factual circumstances of this case.

We have been referred to a number of familiar authorities on the issue of abuse in the context of adding new charges. It is not necessary to refer to them all, though we have considered each of those to which we were referred.

Archbold 2024 Edn at 4-88 provides a concise summary of the applicable principles in situations akin to autrefois, as follows:

It is convenient to start with the recent statement of general principles governing the law on abuse of process in R v Ng and O’Reilly [2024] EWCA Crim 493:

The Elrington principle is a subset of limb 2 abuse of the process. It would offend the court's sense of justice and propriety and public confidence in the criminal justice system would be undermined if, without good reason, a defendant were to be tried and punished twice for an offence arising out of the same or substantially the same set of facts. The basis for the jurisdiction to stay proceedings in circumstances such as those of the present case was explained in R v Phipps [2005] EWCA Crim 33 where, when considering what is meant by “the same or substantially the same facts” Clarke LJ said at [21] that:

It will immediately be appreciated that the question whether a certain set of facts amount to an abuse of the process will be intensely fact sensitive. Furthermore, Clarke LJ’s formulation of the principle, as set out above, identifies that bringing a second set of proceedings should generally not be permitted “after the first set of proceedings has been concluded.” That, in our judgment, makes perfect sense in principle because, until the first set of proceedings has been concluded, there will be scope for ensuring by proper exercise of case management powers that the proceedings properly balance the twin objectives of trying the defendant on charges that properly reflect their alleged criminality while at the same time ensuring that the defendant’s trial will be fair.

The analogy with the civil law doctrine embodied in Henderson v Henderson is not exact because the considerations that arise in crime are similar but not identical to those in civil. The civil doctrine does not engage the same public interest in offences being properly charged so that they reflect the seriousness of the defendant’s alleged conduct. Conversely, in civil law there is not the same imperative as in crime that people should not be punished twice for the same conduct. Making all due allowance for the different contexts, in our judgment, the touchstone in crime should always be fairness and the avoidance of oppression. If the proposed course of action is fair and avoids oppression, it is hard to conceive that the court's sense of justice and propriety will be offended or public confidence in the criminal justice system be undermined.

Equally, the reference in the original statement of the Elrington principle to acquittal or conviction should be read in the same light as explained in Phipps (see above). It applies in its full rigour once the original proceedings have been concluded, with the clear implication that they can no longer be unravelled or their impact altered: if a new charge is brought based on the same or substantially the same facts, the defendant will be exposed to a second trial and punishment, which is the unfairness to which the principle is directed.

On these general principles, therefore, it would be hard to justify an immutable black letter rule that, from the moment of conviction, it will be an abuse of the process to bring forward another charge on the basis of the same or substantially the same facts as the charge of which the defendant has been convicted. Instead, the nature of the principle calls for a focus on the facts of the particular case applying the touchstone of fairness and the avoidance of oppression.

This approach to the question of abuse can be seen in subsequent authorities.

In Marcellin [2010] EWCA Crim 2733, the appellant was arrested when in possession of two wraps of cocaine in his trouser pocket and a small bag containing a further 24 wraps of cocaine. He was arrested for possession of the contents of the bag with intent to supply the 24 wraps. On his first appearance before the magistrates, he pleaded guilty to the charge of simple possession of the two wraps of cocaine. The magistrates committed him to the Crown Court for trial on the charge of possession of the 24 wraps with intent to supply and, at the same time, committed him for sentence for the possession of the 2 wraps. When the trial eventually came on, it was discovered that the prosecution proposed to allege that the appellant intended to supply the 2 wraps along with the other 24 wraps. This proposal, which the Court of Appeal described as a “prosecution volte face” led defence counsel to ask for a 24-hour adjournment which was refused, as the Court of Appeal held, “for no good reason.” That, however, was not determinative of the appeal.

The Court of Appeal at [17]-[18] referred to R vBeedie [1998] QB 356:

On this summary outline of the facts of Beedie it is plain that it was a case where the first proceedings had concluded, as the landlord had both pleaded guilty and been fined.

The appellant’s submission in Marcellin was that the prosecution should not have been allowed to add the 2 wraps so as to allege that they were part of the totality of the cocaine and that the appellant was in possession of those 2 wraps also with intent to supply. The submission was founded on the failure of the trial judge to require the prosecution to show anything, still less special circumstances, justifying that course of action. The Court of Appeal rejected that submission, holding that the principles in Beedie did not apply. In doing so, Moses LJ said at [23]-[27]:

The approach adopted by the Court of Appeal in Marcellin was endorsed by a different constitution in R v Dwyer [2012] EWCA Crim 10, a case where the appellant had been sentenced for possession with intent to supply and, at a later date when the first proceedings were concluded, he was charged in separate proceedings with conspiracy to supply. Pitchford LJ said at [24]-[25]:

Two further cases illustrate the flexibility inherent in a principle that is firmly based on limb 2 abuse of process.

In R v Antoine [2014] EWCA Crim 1971 1971 the appellant was arrested in possession of a viable revolver loaded with one round of ammunition. For reasons that the Court of Appeal could not understand, he was charged with an offence of possession of a firearm without a certificate contrary to section 1(1)(a) of the Firearms Act 1968 as amended. He pleaded guilty before the magistrates on the same day as he was charged and was sentenced to 4 months imprisonment. Subsequently, approximately three weeks after his original arrest, he was charged with an offence of possession of a prohibited firearm contrary to section 5 of the Firearms Act. The Crown Court Judge refused to order that the section 5 charge should be stayed, whereupon the appellant pleaded guilty and was sentenced to 56 months imprisonment. The Court of Appeal rejected the appellant’s appeal against his conviction. In doing so it rejected the appellant’s submission that the second set of charges gave rise to no special circumstances that could justify their preferment.

At [31]-[33] Thirlwall J said:

It is apparent that, despite the fact that the original proceedings before the Magistrates had concluded, that did not provide an irrefutable reason why the later proceedings shouldbe stayed. Once again, the overarching test for limb 2 abuse was applied: the court’s sense of justice and propriety was not offended nor was confidence in the criminal justice system undermined by the refusal of the stay. It is also clear that the Court of Appeal was prepared to rely upon the facts of the offending itself as justifying a finding of special circumstances. In our judgment, the categories of special circumstances are not closed and depend upon the facts of any given case.

In R v Salmon [2024] EWCA Crim 44, the appellant had been charged with 15 offences of a sexual nature. He would contact young girls and persuade them to provide him with intimate images. Integral to the history of his offending was that he would sometimes persuade or seek to persuade his victim to provide further compromising material by threatening to publish what he already had. He pleaded guilty to all but one of the sexual offences counts at the PTPH. When the matter was listed before the Crown Court Judge for sentence, the Judge raised as a concern that he had inadequate powers of sentencing and inquired why offences of blackmail had not been charged. The case was adjourned and the prosecution subsequently applied to amend the indictment to add five counts of blackmail. The appellant contended that leave should not be given as it would be unjust and/or an abuse of process for leave to be given at such a late stage. The Judge rejected that argument. The appellant then pleaded guilty but appealed to the Court of Appeal on the grounds that leave should not have been given to amend the indictment to add the blackmail counts.

The Court of Appeal rejected the appeal. The core of the Court’s reasoning was at [47] where Jay J said:

Although this passage does not introduce any new principles of law, it endorses the correct approach as being whether the addition of the blackmail counts after the appellant had pleaded guilty to the sexual offences counts would be “an affront to justice”. Central to the reasoning was that there had been no compromise of issues: the appellant’s guilty pleas meant no more and no less than that he was “accepting his guilt across the board.”

Pausing there, this review of the authorities shows that the guiding principles to be applied in a case such as the present are those that are well-established when addressing limb 2 abuse. 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 whether 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 proceedings have progressed, the more likely it is to be arguable that preferring further charges would be an abuse of process. That said, the decisions in Marcellin, Dwyer, Antoine and Salmon show that, both after conviction and even after sentence, any issue of abuse of process will be a question to be decided on the facts of the given case. In our judgment, the later the attempt to prefer new charges, the more relevant it will be to see whether the earlier proceedings can be unravelled or accommodated so as to ensure that there is no unfair oppression of the defendant.

In R v Canatar [2025] EWCA Crim 611, after pleading guilty in the Magistrates’ Court to four offences including simple possession of drugs a series of procedural errors were made in the prosecution’s attempts to bring further charges alleging possession with intent to supply. Emphasising the particular and unusual circumstances of the case, the Court of Appeal “[did] not consider that it would have been appropriate for the Crown Court to vacate the plea leading to conviction in the Magistrates’ Court for simple possession in order to enable it to sentence for a different offence, namely possession with intent to supply, when that other offence was not even properly before the Crown Court” (emphasis added). The Court went on to conclude that “the position in this particular case is that it would have been an abuse of process for the prosecution to institute proceedings for an offence of possession of a Class A drug with intent to supply to others in respect of the events that occurred on 12 March 2021, given that the appellant had been convicted of an offence of possession of cocaine on the same facts and had been committed to the Crown Court for sentence and should already have been sentenced for that matter.”

As these citations show, the decision in Canatar was intensely fact sensitive. Canatar did not purport to and did not lay down a rule that it is an abuse of process for additional charges to be brought after a person has pleaded guilty to a lesser charge in the Magistrates’ Court.

The Judge regarded what had happened as an “unusual circumstance”. He set out his approach as being, first, to consider whether the proceedings had concluded or effectively concluded in the Magistrates’ Court. That he regarded as relevant because it was necessary to determine whether what the prosecution was seeking to do by bringing the charge of dangerous driving was akin to amending an indictment or whether it should be regarded as a new set of proceedings. On this first issue he was satisfied that the proceedings had not concluded before the Magistrates’ Court because the question of sentence remained at large: the appellant could still have applied to withdraw his plea of guilty. The Judge rejected the submission that the present case was akin to autrefois acquit as there was no question of the appellant being penalised twice for the same offending. Accordingly, he was satisfied that he was not dealing with a second set of proceedings. “The question is whether the circumstances are such that it is an abuse of process … for this matter now to be dealt with by way of the more serious charge, when the [Appellant] had entered a plea on the day of trial [before the Magistrates].”

The Judge accepted that the Appellant could still be fairly tried, though he may have had an expectation that he would come to court and be sentenced for the matters to which he had pleaded guilty. He summarised the Appellant’s case as being that “it would be unfair to try him in all the circumstances.” While recognising that the Appellant may feel a sense of unfairness, that was to be balanced against the public interest that “it is right that a Defendant should face the appropriate level of charge.” Having done that balancing exercise he concluded that allowing the case to proceed did not mean that the circumstances should be labelled as an abuse of the justice system, such that … this indictment should be stayed.” He therefore declined the application.

We have summarised the relevant principles above. In our judgment, HHJ Cullum was both entitled and right to refuse the Appellant’s application to stay the proceedings. The Appellant’s primary submission, that further proceedings should always be stayed after a person has been convicted of the lesser charge, is contrary to authority, as we have explained. The question is whether limb 2 abuse has been shown, and it has not. Although it may fairly be said that a charge of dangerous driving was clearly available on the facts as known from the outset, so that optimal efficiency should have led to it being charged initially, the failure to do so does not demonstrate limb 2 abuse. It is salutary to remind ourselves that limb 2 abuse is rarely found: something out of the ordinary must have occurred before a criminal court may refuse to try a defendant charged with a criminal offence when that trial will be fair: see NG at [23], set out above.

Here, by vacatingthe earlier guilty plea, the Court’s case management powers were readily available to avoid the Appellant being sentenced twice for the same conduct. When the question of charging dangerous driving arose, 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. In that sense, the earlier proceedings could be unravelled or catered for without any injustice to the Appellant. That is not to excuse all failures to bring proper charges from the outset; but, where a situation such as arose in the present case occurs, what is called for is a fact-sensitive enquiry to support appropriate limb 2 findings of abuse or otherwise. Canator is such a case in point, but it does not compel the same answer on the different facts of the present case.

For these reasons this appeal must be dismissed.