Crown Prosecution Service, R (on the application of) v Blaydon Youth Court

LORD JUSTICE KEENE: This case raises the not unimportant issue of whether magistrates' courts can conduct a joint trial of two informations laid against a defendant when the prosecution brings those charges in the alternative.

On 17th March 2004 the Blaydon Youth Court had to consider two informations laid against a 17-year old youth, L. The first of those informations alleged an offence contrary to section 4A of the Public Order Act 1986, namely causing harassment, alarm and distress with intent in the racially aggravated form contrary to section 31(1) of the Crime and Disorder Act 1988. The second information alleged an offence contrary to section 4A of the 1986 Act without any reference to racial aggravation. These two charges arose out of the same events on 26th January 2004 and were intended by the prosecution to be in the alternative. L pleaded not guilty to both charges.

The prosecution sought a joint trial by the Youth Court of the two charges. The defence neither consented nor objected to a joint trial, but remained neutral. There has been no appearance today in these proceedings on behalf of the then defendant L.

The court raised the issue of duplicity and Rule 12 of the Magistrates' Courts Rules 1981. That Rule prohibits a magistrates' court from trying an information which charges more than one offence and requires the court to call upon the prosecutor to elect as to which offence he desires the court to proceed on. In the event the court decided that for both the offences charged to be tried "would be duplicitous" and the prosecutor was called upon, in the justices' words, "to nail your flag to the mast".

The Crown Prosecution Service now seeks judicial review of that decision, permission having been granted by Leveson J. On the face of it the justices seem to have confused the issue of whether an information, a single information, is duplicitous, which is indeed covered by Rule 12, with the issue of whether two informations can properly be tried together. Rule 12 does not deal with that latter issue. Indeed it is not contended today on behalf of the justices that either of these informations could be described as duplicitous.

Mr Finch, who appears on behalf of the justices, concedes that the use of that term may have been inappropriate. Furthermore, he concedes that a magistrates' court has the power to try two or more informations together where it is in the interests of justice. That is probably an inevitable concession. The House of Lords so decided in Chief Constable of Norfolk v Clayton (1983) 2 AC 473. In that particular case the House of Lords decided that the consent of the defendant was not a necessary condition for a joint trial in the magistrates' court, although one factor in the decision-making process would be any objection by the defence to a joint trial. In the present case, as I have indicated, there was no such objection.

As a result of this concession Mr Finch has sought to redefine the issue and to defend the justices' decision on a narrower basis. He contends that, while in general there is a power to try two or more informations together in the magistrates' court, that power does not exist or cannot be exercised where the charges are brought in the alternative. He points to the fact that the powers of the magistrates' court are different from those of the Crown Court when it comes to returning an alternative verdict. Section 6(3) of the Criminal Law Act 1967 enables a jury in a trial on indictment to return a verdict of guilty of a lesser offence than that specifically charged in the indictment where that lesser offence is covered by the allegations in the indictment, but there is, he points out, no equivalent provision for summary trials in the magistrates' courts. Likewise when the Crime and Disorder Act 1998 created the racially aggravated form of various public order offences, it expressly provided by subsection (6) as follows:

All of that is correct, but for my part I cannot see that it advances Mr Finch's case. Those statutory provisions prevent there being an alternative verdict by a magistrates' court unless there is an express charge embodying the lesser offence. The statutory provisions to which Mr Finch has referred us are not dealing with the situation where there are express alternative offences in the indictment, but with the ability of a jury to return a verdict for a lesser offence which is not expressly charged on the indictment.

In the magistrates' court there has to be a separate information laid if the alternative of the basic unaggravated offence is to be available to the magistrates' court. There was such a further information in the present case. It is, as I understand it, not argued that there could not be a second information charging the basic offence. The argument is simply that they cannot be tried together. Why should they not be tried together? No authority, as such, is advanced for the proposition that two such informations in the alternative cannot be tried together in the magistrates' court. It is argued that it would be unjust because the defendant would be faced with the possibility of conviction on both charges since section 9(2) of the Magistrates' Court Act 1980 provides that "the court after hearing the evidence from the parties shall convict the accused or dismiss the information".

Consequently, it is said that if the court convicts of the aggravated form of the offence it must also convict of the basic offence, thus producing two convictions from the same facts. A similar result could arise where the defendant pleads guilty to the lesser charge but is then tried and convicted of the racially aggravated offence. This result, it is submitted, is objectionable in law. Mr Finch emphasises that the statutory code contained in the Magistrates' Court Act laid down a specified route. He readily agrees that a situation whereby there would have to be two separate trials in many cases with all the attendant expense and inconvenience for the same witnesses and the same defendant is an absurdity, but in his submission there has to be a statutory amendment to the Magistrates' Court Act 1980 before that absurd situation can be prevented.

For the prosecutor, Mr Moran contends that the justices are not required by section 9 of the Magistrates' Court Act 1980 to convict on the lesser offence if they convict on the racially aggravated charge. He relies on the decision of this court in the Director of Public Prosecutions v Gane [1991] Crim LR 711 where it was held that the justices, when dealing with alternative offences, could adjourn the lesser charge sine die or, alternatively, convict but impose a nominal sentence.

That seems to me to be right. Section 10 of the Magistrates' Court Act 1980 enables the court to adjourn "at any time" and to do so sine die. Alternatively, the defendant could be given an absolute discharge which would not count as a conviction, although I emphasise that this would be unwise until the time for an appeal against the more serious conviction has expired and magistrates should bear that in mind. Moreover the possibility of a defendant pleading guilty to a lesser alternative offence specifically charged and then subsequently being convicted of the more serious alternative can always arise in our system and the courts have had to deal with it. It arises regularly in the crown courts. Thus in R v Cole (1965) 2 QB 388 the Court of Criminal Appeal held that in such circumstances the proper course is to allow the charge to which the defendant pleaded guilty to remain on the file and not to proceed to sentence him. That course was followed expressly in R v Bebbington (1978) 67 Cr.App.R. 285.

I therefore do not accept that there is any objection in principle to, or any inherent and inevitable injustice in, the magistrates' court hearing alternative charges contained in separate informations. They have the power in law to do so since there is no reason why the decision in the Chief Constable of Norfolk case should not apply as it does in other cases of two or more informations. If it is in the interest of justice to try them together they can and should be tried together.

There will indeed usually be very powerful reasons why such charges in the alternative should be tried together. They arise out of the same facts and to try them separately is highly likely to give rise to quite unnecessary expense and inconvenience to everyone concerned: the defendant, the witnesses and the court itself. To adopt that approach would often mean, as Mr Moran submits, that the prosecution would seek to proceed first on the racially aggravated charge and in the event of an acquittal might then well proceed to a second trial on the basic charge. The prosecutor in the present case argues that complainants and other witnesses should not have to give evidence about the same incident twice unless it is absolutely necessary, and that it is a waste of court time and public money for there to be two trials in this case. I agree.

The decision in the present case proceeded on an incorrect understanding of the law, but in any event was perverse in the sense that it was one which no reasonable court could, in these circumstances, have properly made. The only just decision was to proceed with a joint trial.

I, for my part, would quash the Youth Court's decision and order that there should be a trial jointly of the two informations.

MRS JUSTICE HALLETT: I agree.

LORD JUSTICE KEENE: Thank you both very much indeed for your assistance.

MR MORAN: My Lord.