Case No. CO/6217/2012 
Neutral Citation Number: [2013] EWHC 547 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 16 January 2012
 
B e f o r e:

LORD JUSTICE LAWS 

MR JUSTICE HICKINBOTTOM 
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Between: 
THE QUEEN ON THE APPLICATION OF DYER 
Appellant

v 

WATFORD MAGISTRATES COURT 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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MR R WHEELER (instructed by Lloyds PR Solicitors) appeared on behalf of the Appellant 
THE RESPONDENT DID NOT ATTEND AND WAS NOT REPRESENTED  
MR B LEONARD (instructed by the Crown Prosecution Service) appeared on behalf of the interested party 
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J U D G M E N T 

1.	LORD JUSTICE LAWS:  This is an application for judicial review, with permission granted by Wyn Williams J on 23 October 2012, of the decision of the Watford Magistrates' Court made on 1 May 2012 to convict the claimant of two offences, one of causing racially aggravated fear or provocation of violence, contrary to section 31(1)(a) of the Crime and Disorder Act 1998, and the other of causing fear or provocation of violence, contrary to section 4 of the Public Order Act 1986.  It is at once apparent that the former offence is an aggravated form of the latter.  The claimant's conviction of both arose out of a single set of facts.  In those circumstances, it is said that to convict him of both was irrational and disproportionate and was also the product of a fixed and inflexible policy rigidly applied by the Magistrates' Court, and, for these reasons, the convictions were unlawful.   
2.	The facts may be shortly summarised.  I have adapted the description given in the judicial review grounds as follows:
"On 12 February 2012 the claimant had been at the Forum nightclub in Hatfield with friends.  At about 0120 hours the complainant in the case, a taxi driver called Mr Mohammed Ali, admitted two of the claimant's friends into his taxi in order to drive them home.  Shortly afterwards, the claimant approached the car, having been called over by his friend.  He was smoking a cigarette, and he got into the car with it still alight.  Mr Ali asked him to get out and extinguish the cigarette.  He refused.  He told Mr Ali to 'fuck off', and used racist language, including the term 'Paki'.  Mr Ali got out of the car and opened the door where the claimant was sitting.  The claimant began kicking out at him, continuing his racist abuse.  
"At length I got out of the car.  Other taxi drivers came to Mr Ali's assistance.  An argument ensued between the two parties.  Mr Ali was on the phone during the argument but heard the claimant using racist language."
3.	Before the claimant's trial in the Magistrates' Court, he had offered a plea of guilty to the simple offence under section 4 of the 1986 Act, but that had been rejected by the Crown.  At trial the claimant was found guilty of the aggravated offence, the court finding that the racial element was proved.  However the court proceeded to convict the claimant of both offences, and convictions on both were recorded against him.  
4.	His counsel objected on the ground that it would be unfair to record two convictions arising out of one set of facts.  The claimant says that the justices "were unwilling to take account of these submissions and essentially refused to listen" (see paragraph 64 of the grounds) because, it is alleged, the court followed a policy in circumstances such as these to convict of both the aggravated and the simple offences.  We do not have evidence in any proper form of this exchange between counsel and the court.  The claimant nevertheless complains, as I have indicated, that the court was following an inflexible policy and the double conviction is for that reason unlawful.  
5.	The court in its summary grounds for contesting the claim does not accept that it refused to hear any objection and simply proceeded in an inflexible manner.  
6.	I propose to deal briefly with this aspect of the case first, since, in the end, as will appear if my Lord agrees, the outcome turns on the other point in the case.  It is of course a well known principle of our public law that a public authority must not fetter its discretion; and the principle may apply to courts so that, where a court is called on to exercise a discretion which it possesses, it must do so according to its perception of the merits of the case before it.  In this instance there is in my judgment no or no sufficient evidential base for a conclusion that the magistrates failed properly to consider any submission made to them to the effect that the claimant should not stand convicted of the lesser offence.  Quite apart from the want of evidence in proper form, the statement at paragraph 64 of the grounds, which I have cited, is in guarded terms and the court's summary grounds for contesting the claim are somewhat delphic.  The CPS for its part, appearing as the interested party, make it clear that they cannot comment on whether or not a rigid policy was applied.  
7.	I should note a submission made on behalf of the CPS that, having announced the claimant's conviction of both offences, the magistrates had no power to rescind the conviction of the lesser offence on the basis that the power to rescind contained in section 142 of the Magistrates' Courts Act 1980 does not apply in the events which happened.  It is not necessary to go into that.  I entertain some doubt as to whether the announcement of an intention to record a conviction for the lesser offence, if that is what was done, ought properly to be regarded as a final decision; however, as I have said, it is unnecessary to say more as to the submission that the court fettered its discretion because as I have foreshadowed the claimant's double conviction is at the heart of the case and in my view was wrong in principle.  
8.	I should first explain the basis on which the claimant's conviction on the simple, as well as the aggravated, offence is sought to be justified.  If the Magistrates' Court convicted a defendant in the claimant's position on the aggravated charge only and the defendant appealed to the Crown Court, which then allowed the appeal on the footing that the aggravating element was not proved, the conviction would have to be quashed in its entirety and the defendant would in that case stand convicted on neither charge, even though it may be that on the evidence he was manifestly guilty of the lesser offence.  The Crown would not be entitled to pursue him again for the simple offence.  There is no statutory provision which allows a defendant in the Magistrates' Court to be convicted of a lesser offence than that with which he is specifically charged, provided the lesser offence is included within the greater.  The same applies on appeal in the Crown Court.  The position is, of course, quite different in a trial on indictment; hence the practice in the Magistrates' Court by which both the greater and the lesser offence are charged and, if the greater charge is made out, the defendant is convicted on both, though in truth the two charges were as here laid as alternatives.  
9.	Support for this practice is said to be found in the Director of Public Prosecutors v Gane [1991] JP 846, [1991] Crim LR 711.  There the defendant was charged with driving with excess alcohol and being in charge of a vehicle with excess alcohol.  It was clear that on the facts the former charge included the latter.  The magistrates found the facts proved but convicted only on the driving charge and acquitted on the lesser charge.  The prosecutor appealed to this court by way of case stated.  The justices stated in the case that they had concluded that it would be oppressive to convict on the lesser charge because they were only dealing with a single set of facts.  This court (Taylor LJ as he then was and Rougier J) accepted that the Magistrates' Court was wrong to acquit on the lesser charge.  Taylor LJ said this at page 849 of the Justice of the Peace Report, at letter C:
"If, however, the prosecution had at that stage wished to keep its position open, pending any possible appeal with regard to the driving offence, certain alternatives were available.  
"Section 10 of the Magistrates' Courts Act 1980 provides for adjournment of trial as follows:
'A magistrates' court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.'
"The justices could, therefore, have adjourned the alternative charge No.2 sine die, which would have left it open for them to pursue it to conviction had the matter been referred back after a successful appeal on charge 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 any further fine.  The result of that would have been that if a successful appeal had been mounted in regard to the driving charge there would still have remained a conviction on the alternative offence of charge 2 with an appropriate disqualification, although of course no fine."
10.	In R(CPS) and Blaydon Youth Court [2004] EWHC 2296 (Admin) the defendant was charged with a simple offence under the Public Order Act and also with the racially aggravated offence.  The magistrates refused to hear them together.  This court held that was wrong.  Keene LJ said this: 
"11.  For the prosecutor, Mr Moran contends that the justices are not required by section 9 of the Magistrates' Courts 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."
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: see 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.  
13.	In those circumstances, for my part I would allow this claim for judicial review and quash the conviction on the lesser charge. 
14.	MR JUSTICE HICKINBOTTOM:  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.  
15.	After particularly anxious consideration, I have been driven to conclude that a departure from the judgment of this court in Gane is appropriate, and indeed necessary, for the reasons given by my Lord, Laws LJ.  
16.	MR LEONARD:  My Lord, perhaps in view of the potential consequences of this case, consideration will need to be given by the director as to the possibility of applying for the certificational question.  
17.	LORD JUSTICE LAWS:  Of course I well understand that.  We are sitting in this constitution for the rest of this week, two more days.  So it will be very convenient for the court, although I accept the time is short, but, if you do want to make an application, you do it no later than Friday.  We can deal with it in writing, I should have thought, or you might like to come along.  I am not going to make an order that you do it by then but that is just to let you know that we are together until Friday.  
18.	MR LEONARD:  I am grateful for that indication, my Lord.