Proceeding to Trial With Aggravated Offences and Underlying Non-Aggravated Offences

Henderson -v- Crown Prosecution Service [2016] EWHC 464

The Appellant was convicted of three offences of racially aggravated harassment contrary to the Crime and Disorder Act 1998, s.31(1)(b) and three offences of harassment contrary to the Public Order Act 1986, s.4A. Both sets of convictions were in respect of offences against the same victims and arising out of the same facts. The issue raised in this case was the question of how a Magistrates’ Court should proceed when a Defendant is charged with what the District Judge described as a “simple offence” (but which the Queen’s Bench Division referred 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.

It was 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 concerned 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.

In allowing the appeal Simon LJ held that as a matter of principle where there are two charges which are properly characterised as alternatives (as were the charges in the present case) there should not be findings of guilt on both charges. It is not open to a Magistrates’ Court to make a finding of guilt on an alternative underlying offence having made a finding of guilt on the aggravated offence.

The District Judge had been concerned about what would happen if a Defendant pursued an appeal against conviction in this context to the Crown Court. However, if the Magistrates’ Court considering two alternative charges convicted the Defendant of the aggravated offence and adjourned the trial of the underlying offence, on an appeal to the Crown Court and following a full rehearing, it was open to the Crown Court to reverse the conviction on the aggravated offence and convict on the underlying offence. It was open to the Magistrates’ Court to adjourn the trial of the underlying offence sine die. If a Defendant wanted to plead guilty to the underlying offence but contested the aggravated form of the offence, that offer to plead should be recorded by the Court but the plea should not be taken.