Henderson v Crown Prosecution Service

Where aggravated and underlying offences are properly characterised as true alternatives arising from the same facts, a defendant should not be convicted of both. The Magistrates’ Court should convict on the aggravated offence and adjourn the trial of the underlying offence sine die. If the aggravated conviction is later quashed on appeal, the Crown Court may substitute a conviction for the underlying offence. Practical or administrative difficulties do not justify recording two convictions for one wrong. A defendant’s offer to plead guilty to the underlying offence should be noted, but the plea should not be taken while the aggravated charge remains contested.

The appellant appealed by way of case stated against convictions for three underlying harassment offences under the Public Order Act 1986. He had previously been convicted of three racially aggravated harassment offences under the Crime and Disorder Act 1998, arising from the same facts and involving the same victims.

The District Judge who returned the underlying convictions had relied on practical and statutory concerns about adjourning those charges. The central issue was whether, after conviction for the aggravated offences, the Magistrates’ Court could also convict on the underlying offences without imposing a separate penalty, or whether it should adjourn the underlying charges.

1. The appeal was allowed and the convictions for the underlying offences were quashed. The charges were properly characterised as true alternatives. It was therefore impermissible to record findings of guilt on both the aggravated and underlying offences.

2. The Court preferred the principle stated in R (Dyer) v Watford Magistrates Court [2013] EWHC 547 (Admin) to the contrary approach discussed in DPP v Gane (1991) 155 JP 846 and R (CPS) v Blaydon Youth Court [2004] EWHC 2296 (Admin). A person should not receive two criminal convictions for a single wrong merely because no separate penalty is imposed on the underlying offence.

3. The proper procedure is to convict on the aggravated charge and adjourn the trial of the underlying charge sine die. Section 9 of the Magistrates’ Courts Act 1980 does not prevent an adjournment before the trial of the underlying charge is completed. The general power in section 10 supplies the necessary authority.

4. On an appeal to the Crown Court, section 48 of the Senior Courts Act 1981 gives sufficiently broad powers to reverse the aggravated conviction and substitute a conviction for the underlying offence that had been adjourned. The decision in Dutta v Westcott (1987) 84 Cr App R 103 supported that construction.

5. The Interpretation Act 1978 permits prosecution under alternative statutory provisions, but does not authorise convictions for both true alternative offences. If the defendant offers to plead guilty to the underlying offence while contesting the aggravated offence, the offer should be recorded but the plea should not be taken.

• High Court (Administrative Court): On appeal by way of case stated, the Court quashed the convictions for the underlying harassment offences.
• Magistrates’ Court: The District Judge convicted the appellant of the underlying offences after an earlier District Judge had convicted him of the racially aggravated offences arising from the same facts.