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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 counsel.

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 defendant’s record. 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 these circumstances. This case is the second success in as many days for ABR solicitors and Nick de la Poer at the High Court. Anyone who believes they may be affected by this decision should contact Keith Allen to discuss the case. The Judgement is available here.

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