On the 23rd February 2016 a divisional court of the High Court
heard arguments about the appropriate way to deal with alternative
charges in the Magistrates' Court. Keith Allen of
ABR solicitors acted as solicitor in the matter and Nick de la Poer of New Park Court Chambers, as
The brief facts of the case are that on the 1st May 2015 after a
trial lasting two days at Huddersfield Magistrates' Court the
appellant was convicted of 3 racially aggravated public order
offences. He was also convicted of the 3 lesser alternative charges
under the Public Order Act. These lesser offences were on precisely
the same facts as the aggravated form of the offences, but did not
include the racial element.
Keith had argued that the Court was wrong to convict the
defendant of both sets of matters as it meant that he would have
two crimes on his record when in fact in relation to each pair of
offences (aggravated and lesser) there was only a single piece of
offending behaviour. The District Judge, in deciding to convict the
defendant of the lesser alternatives, referred to guidance issued
by the Justices Clerks Society and to a High Court case from 1991.
The Judge concluded that the law permitted him to convict the
defendant of both sets of offences and that it was appropriate for
such verdicts to be returned.
Believing that the decision should be challenged Keith
instructed Nick de la Poer and stated a case for consideration by
the High Court.
The question for the High Court was whether it was wrong in law
to convict someone of both the racially aggravated public order
offence and the lesser public order offence based on the same facts
when one was an alternative to the other.
Keith and Nick worked closely together on the matter and on the
23rd February the case was argued before a Divisional Court of Lord
Justice Simon, Mr Justice Cooke and Mr Justice Leggatt. The Court
reserved judgement which was handed down on the 9th March 2016.
The Court allowed the appeal. It held that the decision of the
District Judge to convict of both the aggravated and simple version
of the offence was wrong in law. It ruled, settling an area of the
law which was leading to inconsistent practice against the country,
that in future Magistrates' Court's should adjourn the
underlying offence sine die (without date) if convicting
the defendant of the more serious version of the charge. The High
Court made clear that in the event of an appeal it will be open to
the Court hearing the matter to reach a verdict on the simple
offence if acquitting of the racially aggravated offence. The
result is the underlying offence is not recorded on a
For this defendant it means that the convictions wrongfully
entered on his record were quashed. On a national scale it will
mean that a number of people who have been convicted of both could
appeal seeking to set aside convictions for underlying offences and
the Justices Clerks Society will need to change their guidance to
Magistrates. It should also settle a tension which has existed
between the 1991 case (Gane) and a 2013 case (Dyer) as to what the correct approach is in
This case is the second success in as many days for ABR
solicitors and Nick de la Poer at the High Court.
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