James Robert Henderson v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon |
| Judgment Date | 09 March 2016 |
| Neutral Citation | [2016] EWHC 464 (Admin) |
| Docket Number | CO Ref: CO/3688/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2016 |
[2016] EWHC 464 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Leeds Combined Court Centre
1 Oxford Road, LS1 3BG
Lord Justice Simon
Mr Justice Cooke
and
Mr Justice Leggatt
CO Ref: CO/3688/2015
Mr Nicholas de la Poer (instructed by ABR Solicitors) for the Appellant
Mr Paul Lodato ( CPS Appeals and Review Unit) for the Respondent
Hearing date: 23 February 2016
Introduction
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
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.
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.
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
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.
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.
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.
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.
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.
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...
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