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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Henderson v Crown Prosecution Service [2016] EWHC 464 (Admin) (09 March 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/464.html Cite as: 180 JP 405, [2016] WLR(D) 132, (2016) 180 JP 405, [2016] 2 Cr App R 7, [2016] Crim LR 422, [2016] EWHC 464 (Admin), [2016] 1 WLR 1990

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Leeds Combined Court Centre 1 Oxford Road, LS1 3BG
		09/03/2016

Lord Justice Simon:

Introduction

1. This is the judgment of the Court on the Appellant's appeal by way of Case Stated from the decision of District Judge (Magistrates Court) Fanning to convict him for three offences of harassment contrary to s.4A of the Public Order Act 1986 on 1 May 2015. These convictions followed the Appellant's convictions on 10 April 2015 for three offences of racially aggravated harassment contrary to s.31(1)(b) of Crime and Disorder Act 1998. Both sets of convictions were in respect of offences against the same victims and arising out of the same facts.

The issue

2. The appeal raises the question of how the Magistrates' Court should proceed when a defendant is charged with what the District Judge described as a 'simple offence' (but which we will refer to as an 'underlying offence') and a racially or religiously aggravated offence arising out of the same facts, where the Court finds the defendant guilty of the aggravated offence. In the present case DJ(MC) Ross found the Appellant guilty of the aggravated offences following a trial on 9 and 10 April 2015, but, following submissions from the Appellant's solicitor, declined to announce verdicts on the underlying offences and adjourned the case. The matter came before DJ(MC) Fanning, who concluded that the facts of the underlying offences had been proved before DJ(MC) Ross and that guilty verdicts should be returned in relation to the 3 underlying offences, with no separate penalty being imposed.
3. It is the Appellant's case that it was wrong in principle to find him guilty of both the aggravated and the underlying offences and that the convictions for the underlying offences should be quashed. The present case concerns harassment, but similar issues would arise where there are charges of both an underlying offence of assault or criminal damage, and an offence which is either racially or religiously aggravated.
4. The case reveals a divergence of view as to the proper course to be adopted if the more serious aggravated offence is found proved. Should the Court also convict the defendant of the underlying offence without imposing any sentence for that offence or should it proceed to deal only with the aggravated offence and adjourn the trial of the underlying offence?

The authorities

5. In DPP v Gane (1991) 155 JP 846, a decision of the Divisional Court (Taylor LJ and Rougier J), the defendant was convicted of driving a motor vehicle having consumed alcohol in such quantity that the proportion of alcohol in his breath exceeded the prescribed limit (contrary to s.5(1)(a) of the Road Traffic Act 1988): charge number 4. He was also charged with an offence of being in charge of a motor vehicle having consumed alcohol in excess of the prescribed limit (contrary to s.5(1)(b)): charge number 2. The Magistrates convicted the defendant on charge number 4 but not on charge number 2, on the basis that having found him guilty on charge number 4 they felt that it would be 'oppressive' also to convict him on charge number 2. The Prosecution appealed on the basis that s.9(2) of the Magistrates' Court Act 1980 ('the MCA 1980') required the Magistrates either to convict or to dismiss the information, but that they were not entitled to dismiss it on the basis that it was 'oppressive' to convict on charge number 2.
6. At this stage it is convenient to note an argument which was advanced by the Prosecution in Gane and which has been advanced subsequently as a reason for convicting a defendant of an underlying offence as well as an aggravated version of the offence: namely, that, if the defendant were successful on an appeal to the Crown Court against the conviction of the aggravated offence, in the absence of a conviction for the underlying offence, there would be (at least) practical problems in proceeding with the underlying offence in the Magistrates Court. The Court in Gane (Taylor LJ giving the leading judgment) referred to the power to adjourn the trial under s.10 of the MCA 1980, and continued at p.849:

The justices could, therefore, have adjourned the alternative [charge number 2] sine die, which would have left it open to them to pursue it to conviction if the matter had been referred back after a successful appeal on [charge number 4]. Alternatively, they could have convicted of it and imposed a concurrent disqualification on that charge but no further penalty if they felt it would have been oppressive to have imposed a further fine. The result of that would have been that if a successful appeal had been mounted in regard to [charge number 4] there would still have remained a conviction on the alternative offence of charge number 2 with appropriate disqualification, although of course no fine.

7. It is important to note that the Court was envisaging two possible approaches to the issue: the first, to adjourn the alternative charge and the second to convict of the alternative charge with no further penalty. In the present case, DJ(MC) Fanning adopted the latter course.
8. This approach to the issue was considered by another Divisional Court (Keene LJ and Hallett J) in R (CPS) v. Blaydon Youth Court [2004] EWHC 2296 (Admin). In that case the defendant was charged, as in the present case, with racially aggravated harassment contrary to s.31(1) of the Crime and Disorder Act 1998 and with the underlying offence of harassment contrary to s.4A of the Public Order Act 1984. The charges arose out of the same events and were intended to be prosecuted in the alternative. However, the Magistrates put the Prosecution to an election as to which charge it wanted to proceed with; and the Prosecution appealed. Keene LJ said:

11. For the prosecutor, Mr Moran contends that the justices are not required by section 9 of the Magistrates' Court Act 1980 to convict on the lesser offence if they convict on the racially aggravated charge. He relies on the decision of this court in the Director of Public Prosecutions v Gane [1991] Crim LR 711 where it was held that the justices, when dealing with alternative offences, could adjourn the lesser charge sine die or, alternatively, convict but impose a nominal sentence.

12. That seems to me to be right. Section 10 of the Magistrates' Court Act 1980 enables the court to adjourn 'at any time' and to do so sine die. Alternatively, the defendant could be given an absolute discharge which would not count as a conviction, although I emphasise that this would be unwise until the time for an appeal against the more serious conviction has expired and magistrates should bear that in mind. Moreover the possibility of a defendant pleading guilty to a lesser alternative offence specifically charged and then subsequently being convicted of the more serious alternative can always arise in our system and the courts have had to deal with it. It arises regularly in the crown courts. Thus in R v Cole (1965) 2 QB 388 the Court of Criminal Appeal held that in such circumstances the proper course is to allow the charge to which the defendant pleaded guilty to remain on the file and not to proceed to sentence him. That course was followed expressly in R v Bebbington (1978) 67 Cr. App. R. 285.

13. I therefore do not accept that there is any objection in principle to, or any inherent and inevitable injustice in, the magistrates' court hearing alternative charges contained in separate informations. They have the power in law to do so since there is no reason why the decision in the Chief Constable of Norfolk case should not apply as it does in other cases of two or more informations. If it is in the interest of justice to try them together they can and should be tried together.

9. The passage at [11] is at least some further support for the proposition that it is open to the Magistrates, if they convict on the aggravated charge, also to convict of the underlying offence but impose a nominal sentence.
10. In R (Dyer) v. Watford Magistrates Court [2013] EWHC 547 (Admin), 177 J.P. 265, the Divisional Court (Laws LJ and Hickinbottom J) took a different view. In that case the claimant had been convicted of both an underlying offence contrary to s.4 of the Public Order Act 1986 and the racially aggravated offence contrary to s.31 (1) of the Crime and Disorder Act 1998 where the charges arose out of the same facts. At [10] Laws LJ referred to the cases of Gane and R (CPS) v. Blaydon Youth Court, and continued:

11. Plainly the case of Gane supports the proposition that in circumstances such as those of this claimant it is open to the Magistrates' Court to convict of both offences; but with very great deference I do not think this is right. It is open to us to take a different view. A Divisional Court exercising the supervisory jurisdiction is not bound by its own decisions, though of course it will pay them great respect: R v Greater Manchester Coroner, ex parte Tal [1985] QB 67 and 81, C to D. This claimant stands convicted twice for a single wrong. That is unfair and disproportionate. 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 person's 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. These two offences were charged as alternatives but they have been treated as if they were cumulative. This is a practice which infringes the basic rule which I have described. The practice in the Crown Court is, or, if it is not, it should be, conformable with this approach.

12. The right course in circumstances like these is for the court to adjourn the lesser charge at the end of the trial but before conviction. In the event of a successful appeal relating to the aggravated offence, and that appeal succeeding on the footing that the aggravating element was not made out, a conviction on the lesser offence might thereafter properly be recorded against the defendant. Mr Leonard for the Crown Prosecution Service submitted that there may be practical difficulties in such a course; but no practical difficulty must be allowed to override a basic requirement of justice - namely that a person should be convicted once for one wrong.

11. Hickinbottom J expressed himself emphatically (at [14]):

I agree. 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. That repugnance is the greater because, in the Magistrates' Court, any potential injustice following a successful appeal against a conviction of the larger offence relied upon by the Crown before us, can be eliminated in practice by the trial court giving no verdict on the lesser alternative and adjourning the lesser charge sine die under section 10 of Magistrates' Courts Act 1980, so that that charge can be brought back, if appropriate, after a successful appeal.

12. The 'practical difficulties' referred to in [12] of Dyer figure in the Case Stated and we consider these below.
13. The Court of Appeal (Criminal Division) considered the issue in R v. Akhtar [2015] 1 WLR 3046. The issue in Akhtar arose from the procedural consequences of taking a verdict on count 2 (possession of an offensive weapon) and ordering a retrial on count 1 (the more serious offence of possession with intent to cause damage). The Court of Appeal concluded that there was a distinction to be drawn between 'forensic alternative' charges (counts 1 and 2 in Akhtar) and 'true alternative' charges (see for example, R v. Bayode [2013] EWCA Crim 356 and Dyer). In the latter cases, to adopt the words of Hughes LJ in Bayode at [33],

… whether there is one count or two, there cannot be convictions for both offences which are properly mutually exclusive alternatives. If there were two counts and no plea of guilty, the jury would try the defendant on both, but would not be permitted to return verdicts of guilty on more than one.

14. At [36] of the judgment in Akhtar, Sir Brian Leveson PQBD described Dyer as an example of a case where there were two mutually exclusive alternatives; and there is nothing in the judgment in Akhtar which casts doubt on the approach adopted by the Divisional Court in Dyer. On the contrary Dyer was regarded as being consistent with the principle which applies to charges which are 'true alternatives'.
15. DJ Fanning referred in the Case Stated to guidance issued by the Clerk to the Justices for West and North Yorkshire and by the Justices Clerks Society. That guidance drew attention to what were described as the conflicting decisions of the Divisional Court in Gane and the Blaydon Youth Court case on the one hand and Dyer on the other, and took the view that the former cases should be followed:

Thus where alternative charges are laid arising out of the same incident, the court can properly convict of both and order no separate penalty or an absolute discharge on the lesser offence.

16. While we accept that advice from such a source is entitled to respect, we disagree with it. In our view the recent, clear and authoritative statements of principle in Dyer, where the point was directly in issue and argued, are to be preferred. As a matter of principle where there are two charges which are properly characterised as alternatives (as were the charges in the present case) there should not be findings of guilt on both charges; and it is not open to a Magistrates' Court to make a finding of guilt on an alternative underlying offence having made a finding of guilt on the aggravated offence.
17. As we have noted, in the course of his judgment, Laws LJ referred to the practical difficulties which may arise from this approach, and since these were an important part of the District Judge's reasons for making a findings of guilt on the underlying offences in the present case, it is to these that we now turn.
18. The District Judge began by noting that this was an issue which was frequently encountered:

Cases of racial aggravation, coupled with a non-racial alternative, are encountered in the Magistrates Courts on a daily basis … Clarity of approach is required if such cases are to be dealt with in a consistent way.

19. He identified five potential problems if, following a finding of guilt on the aggravated charge, there was no finding of guilt on the alternative underlying charge.
20. First, he doubted whether it was open to the Magistrates Court not to deliver a verdict on the underlying charge. Section 9 of the MCA 1980, which sets out the procedure to be adopted at trial, includes s.9(2).

The Court after hearing the evidence and the parties shall convict the accused or dismiss the information.

21. Secondly, the District Judge identified practical difficulties if there were an adjournment of the underlying charge sine die, as had been suggested in [14] of Dyer. Although s.10(1) of the MCA 1990 conferred a wide discretion to adjourn a trial 'whether before or after beginning to try the information', s.10(2) provides

The Court may when adjourning either fix the time and place at which the trial is to be resumed or unless it remands the accused leave the time and place to be determined later by the Court.

22. The District Judge noted that s.18(4) of the MCA 1990 referred to the Court's power to adjourn Court proceedings under ss.19 to 23, and contains a requirement to remand the defendant '(b) if he has been remanded at any time during the course of the proceedings.' The Case Stated identified a tension between the requirement to remand a previously remanded defendant under s.18(4) and the apparently discretionary nature of the power under s.10 either to remand a defendant or not. In the District Judge's view s.18(4) does not permit an adjournment sine die in relation to a defendant who had been remanded; and if s.10(2) were to be regarded as taking precedence over s.18 and the adjournment did not require a compulsory remand, then the Court might face real difficulties in securing a defendant's attendance if an appeal succeeded on the aggravated charge and the case was remitted for a finding on the underlying charge.
23. Thirdly, the District Judge, suggested that any practice of adjourning a charge sine die was contrary to the overriding objective set out in the Criminal Procedure Rules of dealing with cases justly, which included dealing with them efficiently and expeditiously (see CPR Rule 1.1(2)(e)), with active case management designed to discourage delay (see CPR Rule 3.2.(1)). He recognised that an adjournment of the underlying charge in the present type of case was different to the type of adjournment which has been deplored in a number of cases in the Divisional Court, see for example, CPS v. Picton [2006] EWHC 1108 (Admin), (2006) 170 J.P. 567, and DPP v. Petrie [2015] EWHC 48 (Admin), (2015) 179 J.P.251. Nevertheless he identified practical difficulties in adjourning underlying charges sine die. In particular, there would be no formal adjudication on the underlying charge and the District Judge was concerned that there is no administrative process for closing and archiving the file where there are outstanding charges in respect of which there has been no formal adjudication. He was also concerned that, if there were a successful appeal to the Crown Court in respect of the aggravated charge (which would involve a full rehearing, with witnesses giving evidence), the decision in Dyer envisaged a further hearing of the underlying charge before the Magistrates' Court, with the possibility of a further right of appeal.
24. Fourthly, the District Judge dealt with what he considered to be the difficulties arising from the way in which appeals from the Magistrates Court to the Crown Court are dealt with: in short, there is no procedure by which the Crown Court could allow an appeal against conviction of the aggravated offence and substitute a conviction for the underlying offence, as is permitted on a trial on indictment in the Crown Court under s.6(3) of the Criminal Law Act 1967:

Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegation in the indictment amounts to or includes (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

25. Thus, by way of example, on a count of causing grievous bodily harm with intent contrary to s.18 of the Offences against the Person Act 1861, the jury may return a verdict of inflicting grievous bodily harm contrary to s.20 where it has not been satisfied as to the defendant's intent.
26. Finally, the District Judge drew support for his conclusion that it was open to convict on two alternative charges from the terms of s.18 of the Interpretation Act 1978:

Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished more than once for the same offence.

27. He viewed this provision as lending support to the possibility of convictions on both an aggravated and an underlying charge, provided that there was no additional penalty in respect of the latter. He noted that the Court in Dyer had not referred to s.18 of the Interpretation Act 1967 in the course of the judgments.
28. We have considered these points, some of which overlap with each other.
29. In our view it is convenient to start with the powers of the Crown Court on an appeal from the Magistrates' Court. These are set out in s.48 of the Senior Courts Act 1981 under the heading 'Appeals to Crown Court':

(1) The Crown Court may, in the course of hearing any appeal, correct any error or mistake in the order of judgment incorporating the decision which is the subject of the appeal.

(2) On the termination of the hearing of an appeal the Crown Court -

(a) may confirm, reverse or vary any part of the decision appealed against, including a determination not to impose a separate penalty in respect of an offence; or

(b) may remit the matter with its opinion thereon to the authority whose decision is appealed against; or

(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.

(3) Subsection (2) has effect subject to any enactment relating to any such appeal which expressly limits or restricts the powers of the court on the appeal.

(4) Subject to section 11(6) of the Criminal Appeal Act 1995, if the appeal is against a conviction or a sentence, the preceding provisions of this section shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrates' court whose decision is appealed against, if that is a punishment which that magistrates' court might have awarded.

(5) This section applies whether or not the appeal is against the whole of the decision.

(6) In this section 'sentence' includes any order made by a court when dealing with an offender …

30. In our view, Mr Lodato is correct in his submission that the statutory powers of the Crown Court sitting in its appellate capacity (in particular its powers under s.48(2) and (4)) are sufficiently wide to enable the Crown Court, where it reverses a conviction in the Magistrates' Court of an aggravated offence, to substitute a conviction for an alternative underlying offence which has been adjourned by the Magistrates' Court as part of the decision appealed against. We have reached this conclusion on the basis of the broad statutory wording, while recognising that there is support for this view in the decision of the Divisional Court in Dutta v. Westcott (1987) 84 Cr. App. R. 103 (Woolf LJ and Macpherson J).
31. In that case the defendant had appealed to the Crown Court against his conviction for driving while uninsured and succeeded in that appeal. However, the Crown Court then went on to impose penalty points which had not been imposed in respect of other offences. Although these had not been the subject of any appeal, the Crown Court decided they should have been imposed. In giving the main judgment Woolf LJ made clear that the 'authority' in s.48(2)(c) was a term which applied to the Magistrates' Court when there was an appeal against a decision of the Magistrates' Court. He also expressed his view about the ambit of the words, 'the decision which is the subject of the appeal' in s.48(1):

So far as those words are concerned, it is quite clear from s.48 itself that the decision which is the subject of an appeal cannot mean merely a decision to convict or a decision to sentence … It is my view that the word 'decision' as used in s.48 is being used in a wide sense. I regard it as clear from the wording of s.48 as a whole that what was intended was by the words to which I have referred (which are not in my view words of art) was that the Crown Court should have the right to confirm, reverse or vary the whole of the decision made by the Magistrates' Court on the occasion on which the conviction or sentence which was the subject expressly of the appeal was made. Therefore, although a defendant chooses only to appeal against part of the decision, namely, a particular conviction or a particular sentence, the Crown Court has jurisdiction in respect of all the matters which were then before the Court.

32. In our judgment, if the Magistrates' Court considering two alternative charges convicts of the aggravated offence and adjourns the trial of the underlying offence, then, on an appeal to the Crown Court and following a full rehearing, it is open to the Crown Court to reverse the conviction on the aggravated offence and convict on the underlying offence.
33. The question then arises: is it open to the Magistrates' Court to adjourn the trial of the underlying offence and, if so, on what basis?
34. As we have set out above, although the Court in Gane and the Blaydon Youth Court case and the Court in the Dyer disagreed as to whether guilty verdicts could be returned on both of two alternative charges, they were agreed that it was open to the court to adjourn the trial of underlying offence sine die.
35. In our view they were correct to do so.
36. Section 9 of the MCA 1980 addresses the procedure at trial, and s.9(2) requires that, at the conclusion of a trial, the Court should either convict the accused or dismiss the charge. It does not prevent the adjournment of the trial or part of it, as is clear from the decision in R v. Redbridge Justices, ex parte Gurmit Ram [1992] QB 384, where a bench of two justices disagreed, and the Divisional Court held that the appropriate course was to adjourn the case to a differently constituted bench of three justices.
37. The District Judge doubted whether the Magistrates' Court had power to adjourn a trial of the underlying offence sine die, although the Courts in Gane, the Blaydon Youth Court case and Dyer each considered that this was an appropriate course. We agree with that conclusion.
38. Section 10 of the MCA 1980 provides the general power to adjourn:

(1) A magistrates' court may at any time, whether before or after beginning to try the information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.

(2) The court may when adjourning either fix the time and place at which the trial is to be resumed, or, unless it remands the accused, leave the time and place to be determined later by the court; but the trial shall not be resumed at that time and place unless the court is satisfied that the parties have had adequate notice thereof.

39. Although the District Judge referred to s.18 of the MCA 1980, that provision is concerned with 'initial procedure'; and s.18(4) refers to the Court 'proceeding under sections 19 to 23', which are concerned with mode of trial. In our view the provisions of s.10 confer the relevant powers to adjourn. We accept that there might be difficulties in securing a defendant's attendance if there were no remand; however, in the circumstances we have outlined above, there would be no need for a further hearing before the Magistrates' Court.
40. In order to avoid the objectionable course of convicting for both the underlying offence and the aggravated offence, the sensible course is to adjourn the trial of the underlying offence sine die; and we do not consider that any practical difficulty involved in dealing with the files in such cases is an insurmountable objection to this course.
41. If the defendant wishes to plead guilty to the underlying offence but contest the aggravated offence, that offer to plead should be noted but the plea should not be taken.
42. The District Judge also drew attention to s.18 of the Interpretation Act 1978. That provision plainly permits the prosecution to proceed as it wishes where an act or omission constitutes an offence under one or more statutory provisions or at common law. However, it does not provide statutory authority for the proposition that a defendant can be convicted on both of what are true alternative charges.

Conclusion

43. We would wish to acknowledge the clarity and comprehensiveness of the Case Stated. We have endeavoured to answer the broader points which were raised, but our conclusion can be stated shortly: the convictions on 1 May 2015 of the underlying offences must be quashed.