Dyer, R (on the application of) v Watford Magistrates Court

Where one offence contains all the elements of another, together with an aggravating element, conviction of both offences arising from the same facts is unfair and disproportionate. A person’s criminal record should reflect what he has done, no more and no less. The lesser alternative should be adjourned before conviction, so that it may be brought back only if an appeal against the aggravated conviction succeeds because the aggravating element was not proved. Practical difficulties cannot override this basic requirement of justice. A Divisional Court may depart from its own decisions where necessary, while continuing to treat them with respect.

The claimant sought judicial review of the Watford Magistrates’ Court’s decision on 1 May 2012 to convict him of both a racially aggravated public-order offence under section 31(1)(a) of the Crime and Disorder Act 1998 and the lesser offence under section 4 of the Public Order Act 1986. Both convictions arose from the same incident, and the aggravated offence contained all the elements of the lesser offence.

The claimant argued that the double conviction was irrational, disproportionate and unlawful because the offences had been charged as alternatives. The court also considered an allegation that the magistrates had applied an inflexible policy, but the evidence was insufficient. The central issue was whether both convictions could properly be recorded.

1. Claim allowed. The conviction on the lesser charge was quashed.
2. Convicting a defendant twice for one wrong, where one offence contains all the elements of the other together with an aggravating element, is unfair and disproportionate. The two offences had been charged as alternatives but had been treated as cumulative. A person’s criminal record must reflect what he has done, no more and no less.
3. The court departed from Director of Public Prosecutions v Gane [1991] JP 846; [1991] Crim LR 711, which had supported recording convictions for both the greater and lesser offences. The court considered that this approach was wrong in principle.
4. The proper procedure is to adjourn the lesser charge at the end of the trial, before conviction, under section 10 of the Magistrates’ Courts Act 1980. If an appeal against the aggravated conviction succeeds because the aggravating element was not proved, the lesser conviction may then be recorded. Practical difficulties cannot override the basic requirement that a person should be convicted once for one wrong.
5. The court also held that a Divisional Court exercising its supervisory jurisdiction is not bound by its own decisions, although it will pay them great respect. The allegation that the magistrates had applied an inflexible policy was unsupported by sufficient evidence and did not determine the outcome.

Permission for judicial review was granted by Wyn Williams J on 23 October 2012. The Divisional Court reviewed the magistrates’ decision of 1 May 2012 and allowed the claim, quashing the conviction on the lesser charge.