QUEEN'S BENCH DIVISION
1 Oxford Road, LS1 3BG
B e f o r e :
Mr Justice Cooke
Mr Justice Leggatt
| James Robert Henderson
Crown Prosecution Service
Mr Paul Lodato (CPS Appeals and Review Unit) for the Respondent
Hearing date: 23 February 2016
Crown Copyright ©
Lord Justice Simon:
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.
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  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.
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  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.
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.
… 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.
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.
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.
The Court after hearing the evidence and the parties shall convict the accused or dismiss the information.
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.
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.
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.
(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 …
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.
(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.