England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London W2A 2LL
		6th October 1999

1. This is the judgment of the court. On 26^th March 1997 the appellants Hoines and Hemmings were convicted of robbery (count 1) and kidnapping (count 2), the appellant Miller was convicted of theft (count 3) and all three appellants were convicted of conspiracy to steal (count 4). Hoines and Hemmings received sentences totalling 10 years and Miller, 4 years. They all appealed against conviction and on the 8^th May 1998 this court, comprising Hutchison LJ, Hughes J, and His Honour Judge Hyam, allowed the appeals, quashed the convictions and ordered a new trial. It gave its reasons on the 2^nd July 1998. In each case the order of the court was that the appellant be retried on a fresh indictment. Pursuant to that order, a fresh indictment was prepared containing the same counts as on the original indictment. Thus count 1 alleged robbery against Hoines and Hemmings, count 2 alleged kidnapping against Hoines and Hemmings, count 3 alleged theft against Miller and count 4 alleged conspiracy to steal against all three appellants and was based on their alleged involvement in a number of thefts other than the theft alleged in count 3.
2. As we understand it, the re-trial was due to begin on 24^th September 1998 on that fresh indictment. Mr Kelly represented the Crown and Mr Nathan, who had not appeared at the original trial or before this court, represented Hemmings. The other appellants were represented as they had been previously. Before the retrial began, Mr Nathan formed the view that it was in Hemmings' interest to be tried on substantive counts of theft rather than the conspiracy to steal which had been count 4 of the original indictment upon which he had originally been tried and in respect of which a retrial had been ordered. Mr Nathan took the view that in the event of conviction, it was important to know upon what allegations of theft the jury had found Hemmings guilty. In those circumstances, having discussed the matter with the other defence counsel, he approached Mr Kelly and, on the basis that the defence wanted the amendment in the interests of the appellants, Mr Kelly drew up appropriate theft counts. The judge, His Honour Judge Morris, approved the amendments on the basis that all parties agreed to them. The trial then proceeded on the amended fresh indictment until the close of the Crown case. All concerned consented to that course. Counts 1 to 3 were in the same form as in both the original indictment and the fresh indictment, but count 4 of the fresh indictment (which alleged conspiracy to steal on the part of all three appellants) was replaced by counts 4 to 9 which made substantive allegations of theft. The alleged thefts were the same as those which had formed the basis of the conspiracy to steal. Counts 5 to 7 concerned all three appellants, while count 4 involved only Hoines and Miller and counts 8 and 9 concerned only Hemmings.
3. At the close of the Crown's case, the judge invited Mr Kelly to consider whether it was appropriate to add a count of dishonest handling against Miller. He subsequently ruled that it was not, but in the course of the argument he was troubled as to whether the original amendment was legally possible. Subsequently, with a view to giving the defence the opportunity of appealing in the event of a conviction, he considered the matter briefly and ruled that it was. The trial continued.
4. Between the 4^th and 6^th November 1998 the appellants were convicted and sentenced as follows. Hemmings was convicted of robbery on count 1 and sentenced to 6 years imprisonment. He was convicted of kidnapping on count 2 and sentenced to 6 years imprisonment concurrent. He was not concerned with counts 3 and 4, but he was convicted of theft on counts 5, 6, 7 and 9 and sentenced to 4 years imprisonment on each count to be served concurrently, both as between themselves and with the sentences of 6 years for robbery and kidnapping. He was acquitted of Count 8. Hoines was convicted of theft on counts 4, 5, 6, 7 and 9 and sentenced to 4 years imprisonment on each to be served concurrently. Miller was convicted of theft on counts 3, 4, 5, 6, 7 and 9 and was sentenced to 42 months imprisonment on each count to be served concurrently. It should be noted that (as already stated) count 3 was on the original indictment at the first trial and concerned only Miller.
5. Hemmings now appeals against conviction on counts 5, 6, 7 and 9, but not on counts 1 and 2. Miller and Hoines appeal against conviction on counts 4, 5, 6, 7 and 9. Those appeals are all brought by leave of the single judge, who directed that the appeals be expedited. The single judge refused Hemmings leave to appeal against conviction on counts 1 and 2 and he has not sought to renew his application on those counts. As we understand Miller's notice of appeal, and as was confirmed by Mr Nathan, Miller has never sought to appeal against his conviction on count 3, which was not of course affected by the amendments to the fresh indictment.
6. It follows that if the appeals are successful, the position will be as follows. Hemmings' convictions on counts 1 and 2 will be unaffected, as will the concurrent sentences of 6 years imprisonment imposed on those counts. Miller's conviction on count 3 will also be unaffected, as will his sentence of 42 months' imprisonment imposed on that count. It further follows that the outcome of this appeal will have no practical effect upon the terms of imprisonment imposed upon Hemmings and Miller. The position of Hoines is different because not guilty verdicts were entered against him on counts 1 and 2 by direction of the judge, so that he was convicted only on the theft counts which were substituted for the conspiracy count by amendment. However, we were told by Mr Nathan that Hoines has now been released from prison in the ordinary way.
7. No problem would have arisen in this case if the theft counts had been substituted for the conspiracy count at the first trial. Although any convictions on those counts would no doubt have been quashed by this court, a new trial on the original indictment including those counts would have been ordered and would have taken place. In the event Mr Nathan suggested that the theft counts be substituted for the conspiracy count for very good reason. The amendment enabled the jury to focus on the substantive thefts (which were precisely the same as those considered by the jury at the first trial) and it enabled the jury to consider the part played or alleged to have been played by each appellant in the various thefts. Moreover, it would assist the judge if and when he came to pass sentence. Thus (as we have described earlier) not all the appellants were concerned in all the thefts and indeed Hemmings was acquitted of count 8. In short the suggestion made by Mr Nathan that the indictment be amended was eminently sensible, as evidenced by the fact that the other defendants, the Crown and the judge all agreed to it.
8. It is not suggested that the indictment could not have been amended in this way at the original trial. Plainly it could. Moreover it is not now suggested that if there was power to amend the fresh indictment the convictions were in any way unsafe. The question is, however, whether the amendment of the fresh indictment and the trial of the appellants on counts 4 to 9 is prohibited by section 7 of the Criminal Appeal Act 1968, which (in its present form) provides as follows:

7(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be re-tried.

(2) The person shall not under this section be ordered to be retried for any offence other than –

the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in sub-section (1) above;

an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence.

We shall call the alleged theft offences which form counts 4 to 9 of the amended indictment 'the theft offences'. It is submitted that the theft offences do not fall within any of the categories of offence described in Section 7(2)(a)(b) or (c) and that it follows that this court could not have ordered a retrial of the theft offences and that the judge therefore had no power to conduct a trial on those offences.

9. It is convenient first to consider whether the theft offences fall within any of the categories of events in Section 7(2). They are plainly not within Section 7(2)(a) because the offence for which the appellants were convicted was not theft but conspiracy to steal. They are equally outside paragraph (c) because the appellants were not charged in an alternative count or counts of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting the appellants of conspiracy to steal. The question is whether they are within paragraph (b), that is whether the theft offences are offences for which the appellants could have been convicted on an indictment for conspiracy to steal. It is submitted by Mr Nathan that they were not. We agree. In our judgment paragraph (b) was concerned with, say, an offence of theft where the original indictment had alleged robbery. In such a case the jury could have returned a verdict of not guilty of robbery but guilty of theft. By contrast, a jury cannot return a verdict of not guilty of conspiracy to steal, but guilty of theft. Moreover, we do not understand Mr Kelly to argue the contrary or, indeed to argue that this case falls within section 7(2)(b). It was not, for example, suggested that, as a matter of construction, section 7(2)(b) is wide enough to include an offence of which the defendant could have been convicted as a result of an amendment to the indictment which could properly have been permitted by the trial judge.
10. It is possible in principle to have both a conspiracy count and substantive counts of, say, theft, on the same indictment, although in practice the Crown is often asked to elect between them. Lord Widgery CJ issued the following practice direction in May 1977 (see 64 Cr App R 258 and Archbold 1999 paragraph 33-53):

1. In any case where an indictment contains substantive counts and a related conspiracy count, the judge should require the prosecution to justify the joinder, or, failing justification, to elect whether to proceed on the substantive or on the conspiracy counts.

2. A joinder is justified for this purpose if the judge considers that the interests of justice demand it.

Thus at the original trial the conspiracy counts could have been replaced by the theft counts (which would have been a sensible step to take) or, perhaps (if the Judge considered that the interests of justice demanded it ) the theft counts could have been added. In the event neither such step was taken.

11. In these circumstances we have reached the conclusion that the theft offences (1) were not the offence for which the appellants were originally convicted because that was conspiracy to steal, (2) were not offences for which they could have been convicted on the indictment alleging conspiracy to steal and (3) were not offences charged in alternative counts on the indictment. It follows that we accept the submission that they were not within any of the categories of offence in Section 7(2)(a)(b) or (c) of the Criminal Appeal Act 1968.
12. What is the effect of that conclusion? It is that by the express terms of section 7(2) this court could not have ordered the appellants to be re-tried for the theft offences under section 7(1) of the Act. In fact this court did not order or purport to order the appellants to be tried or re-tried for the theft offences. As already stated, it simply made the standard order in each case that the appellant be re-tried on a fresh indictment. That was correctly taken to mean a fresh indictment on the same terms as the old. The court was not asked to make an order in any other terms and it did not do so. As we see it, this court could not have ordered that the appellants be tried or re-tried for the theft offences for the reasons already given, namely that by the express terms of Section 7(2) a person shall not under section 7 be ordered to be re-tried for any offence other than the specified offences, which did not include the theft offences.
13. The question which then arises is whether, on a retrial ordered by this court has power to permit an amendment of the fresh indictment in an appropriate case; and in particular whether he has power to permit an amendment which has the effect of the appellant being re-tried for offences for which this court has no power to order a re-trial. Mr Kelly submits that he has. He submits that once the fresh indictment has been preferred and has been pleaded to, the parties are in the same position as they would have been if the re-trial was a completely new trial starting from scratch. He submits that the court retains its power to amend contained in section 5 of the Indictments Act 1915, which provides as follows:

(1) Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice..."

Mr Kelly submits that Section 5 is in broad terms and that there is nothing in any other statute including section 7 of the Criminal Appeal Act 1968, to deprive the Court of the power (or indeed duty) which is conferred upon it by section 5.

14. In our opinion the law certainly ought to permit an amendment of the kind which was made in this case. It was made at the suggestion of the defence and was both to the advantage of the defendants and in the interests of justice. Indeed that was so obviously the case that it did not occur either to defence counsel or to the judge to check the relevant statutory provisions. It is perhaps ironical that it seems unlikely that if the judge had not suggested an amendment to add a count of handling, the point would not have occurred to anyone. How then is it that this sensible result cannot be achieved?
15. As already indicated, Mr Nathan submits that if this court would have had no power to order a re-trial on an indictment alleging a particular new offence (in this case the theft offences) it must follow that a defendant cannot be tried on such an indictment. There is undoubted force in that submission, especially in the light of section 8(1), which provides, so far as relevant:

A person who is to be re-tried for an offence in pursuance of an order under Section 7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal but after the end of two months from the date of the order for his re-trial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave."

It is submitted that only this court can order a re-trial, that the powers of this court are limited by section 7(2) and that it follows that the crown court can have no power to permit an amendment to an indictment which would have the effect of the defendant being tried or re-tried for an offence for which this court could not lawfully order such a re-trial. It is submitted that it is inconceivable that Parliament could have intended to give a power to the judge at the re-trial which it did not give to the Court of Appeal.

16. That is a powerful argument, but there is a strong argument to the contrary. There is no evidence that Parliament gave consideration to the problem which has occurred here. It seems very likely that if it had, it would have expressed section 7 in somewhat wider terms in order to give this court power to order a re-trial in circumstances such as occurred here. Thus in a case like this, it would have given this court power to order a re-trial on an indictment containing substantive counts if it was just to do so. Indeed, we recommend that consideration be given to this problem when the powers of the court are next reconsidered.
17. Section 7 of the 1968 Act does not expressly proscribe or limit the powers of the trial judge to allow amendments under Section 5 of the Indictments Act 1915 because it does not address the possibility of amendment at all. Section 5(1) is in wide terms. While it might be argued that an indictment preferred pursuant to the express order of the Court of Appeal could not be defective, indictments have been held to be defective within the meaning of Section 5(1) in a wide range of circumstances: see Archbold 1991, paragraph 1-150. One example given in that paragraph is where the evidence led in support of the indictment disclosed more than one offence: Jones (1974) 59 Cr App R 20. If this had been a trial and not a re-trial and it had been sought to amend the indictment by substituting the theft offences for the conspiracy to steal, the amendment could have been made under section 5 on the basis that the indictment was defective within the meaning of section 5. We did not understand Mr Kelly to argue the contrary.
18. Moreover, that would have been so even if the indictment had, for example, been preferred as a voluntary bill pursuant to leave granted by a High Court judge. In Wells [1995] 2 Cr App R 417, the trial judge had permitted the amendment of a voluntary bill of indictment preferred pursuant to the leave of a High Court judge. It was argued that he had no power to do so by reason of section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933, which provides, so far as relevant, as follows:

Subject as hereinafter provided, no bill of indictment charging any person with an indictable offence shall be preferred unless either

(a) the person charged has been committed for trial for the offence; or

.....

(b) the bill is preferred....by the direction of or the consent of a Judge of the High Court....

Provided that –

where the person charged has been committed for trial, the bill of indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any examination or deposition taken before a justice in his presence, being counts which may lawfully be joined in the same indictment; ....."

In Wells the indictment had been preferred by the direction of a High Court judge just in the same way as the fresh indictment here was preferred pursuant to the order of this court. The court in Wells rejected the submission that the judge had no power under section 5 of the 1915 Act to order the amendments in these terms:

The question of amendment of an indictment only arises at a later stage once the bill of indictment has been signed and become an indictment. The power to amend is the power pursuant to section 5 of the 1915 Act and that power is the same whatever the course taken by which the indictment came in to existence. That conclusion is entirely consistent with the decision of this Court in Walters, Tobey & Others (1979) 69 Cr App R 115 where Lord Widgery CJ said at p.119:

We think that, once an indictment is in existence, the power to amend it is the power contained in the Indictments Act 1915 and Rules made thereunder, and there is absolutely no distinction from the point of view of the power of the Judge to amend whether the indictment owes its authority to the High Court Judge giving leave for it to be preferred or whether it has come up through the more conventional channels."

That passage was cited and followed by this Court in Ismail & Others (1991) 92 Cr App R 92 and although Mr Kark seeks to distinguish the nature of the amendment in this case from those in the two earlier cases and argues that the proposition was wider than was necessary to decide either of those two cases, we are entirely satisfied that the observation of the Lord Chief Justice to which we have referred accurately reflects the law.

The case of Ismail, Ismail and Yassine (1991) 92 Cr App R 92 was similar to Wells It is submitted that the position here is the same. Thus it is submitted that once the indictment has been preferred in accordance with the order of the Court of Appeal, the trial judge has the same powers of amendment as he would have had at the original trial.

19. There is force in that submission. It seems to us that the reasoning in Wells does provide some support for Mr Kelly's submission, subject to this. In Wells the High Court judge would have had jurisdiction to give leave to prefer a voluntary bill containing the allegations which the trial judge permitted by amendment, whereas here this court would have had no such power. Nevertheless, Wells does seem to us to support at least the narrower proposition that there is a distinction between both the power to prefer the indictment and the power to give leave to prefer it on the one hand and the power to amend it on the other. So too does both Walters and Ismail, upon both of which the court relied in Wells.
20. There is a further decision of this court which is of some relevance, namely Osieh [1996] 2 Cr App R 145, where Schiemann LJ said this, giving the judgment of the court, at p 150:

It was first submitted by Mr McNulty that the words of section 2 of the 1933 Act prevented the judge from permitting an amendment unless the requirements set out in the proviso of section 2(2) were fulfilled. We regard that submission as unarguable. The prohibition in section 2(2) is an inhibition on the preferment of bills of indictment and the prohibition in section 2(1) is a prohibition on signing bills of indictment. The problems we are considering relate to a stage subsequent to this and relate, not to bills of indictment, but to indictments themselves.

It was then submitted by Mr McNulty that it was always impermissible for a judge to permit an amendment when that amendment amounted to adding a count in respect of which the requirements set out in section 2(2) of the 1933 act had not been fulfilled. He suggested that, were it otherwise, the safeguards imposed by statute requiring a committal could be bypassed.

The court then considered Dixon (Note) (1991) 92 Cr App R 43, found it of little assistance and expressed the following conclusion at p 152:

We regard the suggestion that it is never permissible for a judge to give leave for the making of an amendment to an indictment when that amendment amounts to adding a count in respect of which the requirement set out in section 2(2) of the 1933 Act as wrong, and indeed unarguable. There is no statutory warrant for it. The statutory regimes applicable to the proper officer on the one hand and the judge considering an amendment on the other, are wholly different. The former is carrying out a largely administrative function and if he gets it wrong then the indictment, or a count on it, can be quashed by a judge. The latter is exercising a wide discretion. The fact, if it be a fact, that the proposed amendment raises for the first time something not foreshadowed in the committal documents may be a potential ground for not permitting the amendment or, alternatively, only permitting it on terms as to an adjournment. It does not, however, operate as an absolute bar preventing a judge from permitting the amendment. The protection for an accused which is given by section 2 of the 1933 Act is, in effect, replaced by the judge's discretion which, of course has to be exercised within the confines of the Indictments Act and the rules made thereunder.

21. Those seem to us to be very sensible conclusions. Some of them have, however, been doubted. Indeed the following views are expressed by the editors of Archbold 1999 at paragraph 1-149:

In Osieh ... it was said that, notwithstanding the restrictions imposed by section 2(2) of the [1933 Act], the power to amend an indictment, once it had been preferred, extends to the addition of a count or counts charging offences that are not disclosed in the committal evidence but which are disclosed by evidence subsequently served. If this is correct it means that a count may be added to an indictment which could not lawfully have been included in that indictment when it was preferred. How, in such circumstances, the original indictment could be described as "defective", so as to give the court jurisdiction to amend it, is not clear. It is submitted that the dictum is obiter and incorrect and that it is inconsistent with Dixon ..., Ofori and Tackie (No 2) 99 Cr App R 223, Ca, and with certain observations in Wells ... (at 423E); and Bedwelly JJ ex p Williams [1997] AC .... In any event, as acknowledged in Osieh, an amendment will only be permitted if it can be made without injustice and the fact that the proposed amendment raises, for the first time, a charge not foreshadowed in the committal evidence may provide a basis for refusing to permit it, or for permitting it only subject to an adjournment.

It is not necessary for us to express a view upon the question whether the obiter dicta in Osieh are inconsistent with any of the cases referred to in that paragraph in Archbold. We are not here concerned with the question in what, if any, circumstances it is permissible to amend an indictment to include a charge not foreshadowed in the committal documents. Except for the passage in Wells referred to in Archbold, none of the other cases discusses whether in such circumstances an indictment would be defective within the meaning of section 5(1) of the Indictments act 1915. In Wells Kay J said (at p 423):

It is also to be observed that the decision as to whether the indictment is defective by reason of an omission to charge offences disclosed, is one made by reference to the depositions or the material placed before the High Court judge and not to any notice of any additional evidence. Thus the questions to be asked will usually be the same as those to be asked in deciding whether the count could have been included in the bill of indictment that was preferred. It is this similarity of consideration that perhaps explains the confusion as to the relevance of section 2(2) of the 1933 Act to an application to amend the indictment to which we earlier referred.

22. We agree that the question whether an indictment is defective may often be made by reference to the depositions or to the material placed before a High Court judge considering whether to give leave to prefer a voluntary bill. However whether an indictment is defective within the meaning of section 5(1) of the 1915 Act will depend upon all the circumstances of the case. As stated in paragraph 17 above, indictments have been held to be defective within the meaning of section 5(1) in a wide range of circumstances. It is clear from the decision in Wells that those circumstances may include a case where the amendment is to an indictment preferred pursuant to leave granted by a High Court judge and that in an appropriate case the amended indictment may include adding a count for which leave has not been granted. In our judgment, if an indictment can be held to be defective in such a case, there is no reason why it cannot be held to be defective in a case like the present, or (notwithstanding the views of the editors of Archbold) in a case such as that envisaged in Osieh.
23. As stated in paragraph 17 above, it is not in dispute that if an application had been made to amend the indictment at the trial to substitute the theft offences for the conspiracy to steal, the indictment could properly have been held to have been defective within the meaning of the section. The reason why it could properly be so held is essentially that advanced by Mr Nathan before the judge in support of the amendment, namely that the interests of justice and fairness (and in particular the interests of the defendants) required that it should be amended. It is for those same reasons that the fresh indictment can properly be held to be defective. We do not think that it should be held that the fresh indictment cannot be held to be defective because it was ordered to be preferred by this court. Much the same could be said in a case like Wells, at least until a High Court judge had given leave to prefer a new or amended voluntary bill. In our judgment such a view would be to adopt too narrow a construction of the concept of a defective indictment in section 5(1) and would be inconsistent with the general approach of this court to amendments.
24. In our judgment if it is to be held that there is no power to order the amendment which was permitted in this case, it must be on the basis, not that the fresh indictment was not defective, but on the basis that the effect of section 7(2) of the 1968 Act is to deprive the trial judge of the power which he would otherwise have had under section 5(1) of the 1915 Act to permit the indictment to be amended. As indicated earlier, it is common ground that section 7(2) does not expressly so provide. The question is whether it does so by necessary implication. On the one hand, it is submitted that it does, because Parliament cannot have intended the trial judge to have power to order the trial of a defendant which this court could not have ordered. Mr Nathan observes in this connection that section 7(2) could have given this court a much wider power than it in fact did. On the other hand, it is submitted that it does not, because every statute must be construed in accordance with its legislative purpose and the purpose of section 7 was simply to permit the court to order a re-trial in order to ensure that justice is done while at the same time protecting the defendant by ensuring that he is not put in a worse position than he was at the original trial. In these circumstances, provided that no amendment is permitted which would offend the underlying purpose of section 7, it is submitted that there is no reason to hold that section 7 implicitly limits the power of the trial judge which he would otherwise have under section 5 of the 1915 Act. Thus it is submitted that an amendment such as permitted here cannot be implicitly prohibited by section 7.
25. We have found this a difficult question to decide. There seems to us to be much to be said for either view, but we have reached the conclusion that Mr Kelly's submissions are to be preferred to those of Mr Nathan. We summarise our reasons as follows:

Section 5(1) of the 1915 Act is in wide terms. If it is construed by reference to its terms, the judge had power to permit the amendment. The indictment was defective within the meaning of section 5(1) for the same reason as it was defective at the first trial. At the first trial the amendment would have been "necessary to meet the circumstances of the case" within the meaning of section 5(1) for the reasons given in paragraph 7 above. Further it could not have been said that the amendment could not have been made without injustice.

This court could not have ordered a re-trial under section 7(1) of the 1968 Act on an indictment containing the theft offences because of the terms of section 7(2). However, there is nothing in section 7 or 8 of the 1968 Act which expressly affects the power of the trial judge at a trial (which logically must include a re-trial) to permit the amendment of the indictment preferred pursuant to an order of this court under section 7. Neither section is concerned with amendment. Section 7(2) is concerned with the order and section 8 with the subsequent procedure.

It is not implicit in section 7(2) that the trial judge's power to permit any amendment under section 5(1) is proscribed. There is no reason why the trial judge should not permit an amendment under section 5(1) if the criteria in that section are satisfied.

1.In the instant case those criteria are satisfied because the amendment was "necessary to meet the circumstances of the case" and, not only could the amendment be made without injustice, but the amendment served the interests of justice for the reasons given above.

2.The position would almost certainly have been different if the proposed amendment had put the appellants in a worse position than they had been in at the original trial. As we see it at present, it would not be permissible to permit the amendment of an indictment if to do so would put the defendant in a worse position than he had been after the original trial because any decision on an application to amend must respect the statutory purpose behind section 7 of the 1968.

3.In this case the amendment was consistent with that statutory purpose and not inconsistent with it. In our judgment, section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the 1915 Act.

4.It follows that the appeals must be dismissed.