Summary trial procedure. Verdicts Flashcards
Guilty of a Lesser Offence
The justices are restricted to reaching a decision of guilty or not guilty on the charge actually before them. They have no power to find an accused not guilty as charged but guilty of a lesser offence.
This applies even when a jury, on an equivalently worded count for an either way offence, would be entitled to return an alternative verdict. Thus, in Lawrence v Same, a purported summary conviction for common assault on a charge of unlawful wounding was quashed. It would have been otherwise had there been two separate charges, and the court had decided to convict only on the lesser offence.
There are, however, a number of exceptions to this rule. For example, the RTOA 1988, s. 24, enables magistrates, whenever trying certain driving offences, to find the accused not guilty of the offence charged, but guilty of another specified driving offence (e.g., convicting the accused of careless driving instead of dangerous driving, even though the only charge before the court is one of dangerous driving.
Similarly, the Theft Act 1968, s. 12A(5), provides that an accused who is charged with aggravated vehicle taking may instead be convicted of the lesser offence of vehicle taking contrary to s. 12; s. 12A(5) applies to summary trials as well as to trials on indictment.
Alternative Offences
If the accused is charged with alternative offences at the outset and pleads not guilty to both, the magistrates should not convict of both offences.
In R (Dyer) v Watford Magistrates’ Court, D was charged with an offence under the POA 1986, s. 4, and also with the racially aggravated form of the offence under the CDA 1998, s. 31(1)(a). Before trial, he offered to plead guilty to the s. 4 offence, but that offer was rejected by the prosecution. Following trial, he was convicted of both offences. The Divisional Court declined to follow its earlier decisions in DPP v Gane (where it had been held that it was open to the magistrates’ court to convict D of both offences in similar circumstances), and quashed the conviction on the lesser charge. The Court held that it was ‘unfair and disproportionate’ for an accused to be convicted twice for a single wrong, since a person’s criminal record should record what that person had done, no more and no less.
In such a case, the magistrates should adjourn the lesser charge at the end of the trial but before conviction so that, if an appeal succeeded against conviction on the greater charge, a conviction on the lesser offence might thereafter properly be recorded against the accused In such a case, the magistrates should adjourn the lesser charge at the end of the trial but before conviction so that, if an appeal succeeded against conviction on the greater charge, a conviction on the lesser offence might thereafter properly be recorded against the accused in other words, the court gives no verdict on the lesser alternative and adjourns that lesser charge, without setting a date, under the MCA 1980, s. 10 (Adjournment of trial), so that the lesser charge can be brought back, if appropriate, if the accused appeals successfully against the conviction for the more serious offence.
In Henderson v CPS the Divisional Court rejected submissions that Dyer was wrongly decided. Simon LJ said
As a matter of principle where there are two charges which are properly characterised as alternatives … there should not be findings of guilt on both charges; and 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.
It follows that what his lordship described as the ‘underlying offence’ (the less serious offence) should be adjourned, without setting a date, under the MCA 1980, s. 10.
The Court of Appeal expressed agreement with this approach in Nelson so long as the two charges can properly be regarded as ‘genuine’ or ‘true’ alternatives, in that they ‘overlap in terms of their ingredients’.
The effect of Dyer was considered in Hamer where D was convicted of having an article with a blade or point and breach of a KCPO both offences arising out of the same incident.
The Court concluded that, although founded on the same course of conduct, the two charges were so legally distinct that they could both properly be pursued by the prosecution. In reaching this conclusion, the Court noted that, even though the two charges arose from the same actions on D’s part, the first offence was ‘a substantive criminal act’ and the second was ‘a breach of a previous court order’; the Court noted a number of differences between the two offences which show that, ‘while it is entirely possible to act in a way so as to commit both offences simultaneously … there are also courses of conduct that would commit one but not both offences’. Put another way, the two charges were not alternatives: there was the substantive offence of possession of a bladed article and the separate offence of breaching the KCPO, and so it was not objectionable for D to be convicted of both.
The MCA 1980, s. 142(2) enables an accused who was convicted in a magistrates’ court (whether as a result of a guilty plea or of a finding of guilty after a trial) to ask the magistrates to set the conviction aside.
