England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT HULL
MR RECORDER R MANSELL
T20090178

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2011

Lord Justice Thomas:

1. The sole issue on which leave to appeal was granted is, as we shall explain, whether an indictment can be amended to add counts in respect of matters which have arisen after the date of the committal proceedings. At the conclusion of the hearing, we dismissed the appeal stating we would give our reasons later. These are our reasons.

The facts and the course of the proceedings

2. On 21 December 2007 Trading Enforcement Officers visited the appellant's premises in Hull. They found a number of toys made in China which had counterfeit marks; they were seized. Just under a year later on 29 November 2008, an Enforcement Officer visited the appellant's premises and purchased four toys similar to those seized on 21 December 2007; they also had counterfeit marks.
3. Informations were laid and on 6 January 2009 summonses in respect of the seizure on 21 December 2007 were served on the appellant. On 3 March 2009 the appellant appeared unrepresented at Hull Magistrates' Court; the case was committed for trial at the Crown Court at Hull with the PCMH at the Crown Court fixed for 27 March 2009.
4. On 27 March 2009 the appellant appeared at the PCMH at Hull Crown Court; he was arraigned on a nine count indictment charging him with nine separate offences of unauthorised use of a trademark contrary to s.92(1)(b) of the Trade Marks Act 1994. Each of the counts charged him with exposing for sale a particular toy without the consent of the proprietor of the mark. Each count related to the toys that were seized on 21 December 2007.
5. On 11 May 2009 the trial date was fixed for 28 September 2009.
6. On 7 July 2009 warrants under the Proceeds of Crime Act 2002 were executed at the same premises of the appellant. Enforcement Officers found a quantity of toys identical to those that had been seized on 21 December 2007 with counterfeit marks. It was the seizure on this date that gave rise to the issue on the amendment, as we shall explain.
7. In August 2009 the appellant instructed his own solicitors. Papers relating to the matters charged in the indictment were served again on his solicitors. On 15 September 2009 statements were served on the appellant's solicitors relating to the seizures on 7 July 2009 under a notice of additional evidence.
8. On 28 September 2009 the case came on for trial before Mr Recorder Campbell. The appellant asked for an adjournment on medical grounds; he was required to produce medical evidence. That was produced and an adjournment was eventually granted on 29 September 2009. During the course of the hearing, Mr Recorder Campbell directed that if the Crown wished to rely on the seizures that had been made on 7 July 2009, it should make an application to adduce that as evidence of bad character, such application to be served by 27 October 2009.
9. In that application (which was served a day late) the Crown relied on the gateways under s.101(c) and (d) of the Criminal Justice Act 2003. All the evidence upon which the Crown intended to rely had been served, as we have set out, on 15 September 2009.
10. On 8 February 2010, the trial began before Mr Recorder Mansell. There was an uncontroversial amendment to add a count 10 to the indictment which charged a similar offence in relation to the seizures on 29 November 2008.
11. Mr Recorder Mansell expressed the view that if the Crown wished to make a case in relation to the seizures on 7 July 2009, counts should be added to the indictment in relation to those seizures; the Crown should not rely on the evidence in relation to the seizures as bad character evidence. Counsel for the Crown explained to the trial judge that counts had not been added to the indictment because, at the same time as toys with counterfeit marks were seized, the officers has seized counterfeit currency and extreme pornography and charges were to be preferred in respect of these much more serious offences. There was a concern that the Crown might not be able to pursue a prosecution of those more serious offences if counts were added to the indictment in respect of the seizures of the toys on that date. Mr Recorder Mansell made clear that he did not think that adding counts in respect of the toys with counterfeit marks would affect any future charges arising out of the more serious matters. Counsel for the Crown agreed to seek an amendment to the indictment adding two further counts, counts 11 and 12, charging the appellant with offences contrary to s.92(1)(c) of the Trade Marks Act 1994 of having in his possession in the course of a business with a view to sale various identified toys with counterfeit marks.
12. It is clear from the transcript of the argument before the Recorder that counsel on behalf of the appellant assented to this course.
13. The trial then took place. On 12 February 2010 the jury returned a verdict acquitting the appellant of the unauthorised use of a trademark on counts 1 to 10 but convicting him on counts 11 and 12. No sentence was then passed on the appellant nor had he been sentenced as at the date of the hearing of this appeal some ten months later. The view had apparently been taken that it would not be right to sentence him until the trial on the more serious matters (which is now scheduled for February 2011 having been delayed as a result, we are told, of the appellant's bad health).

Application for leave to appeal

14. An application for leave to appeal was made on two grounds, one related to disclosure and the second inconsistent verdicts. The single judge refused to grant leave on either ground. It is convenient to say that one was renewed before us, namely the contention that the verdicts were inconsistent. We have no hesitation in saying that the single judge was right to refuse leave as the verdicts were plainly not inconsistent. The toys seized on 7 July 2009 were identical to the toys seized on the earlier occasion and they had come, as the packaging showed, from the same factory; it was therefore impossible for the appellant to contend that he did not know they were counterfeit, as by the time of that seizure all the papers in respect of the seizures in 2007 and 2008 had been served upon him.
15. The single judge, however, granted leave to appeal on the question of whether the court had been right to grant leave to amend the indictment to add counts 11 and 12 as the offences post-dated not only the committal proceedings but also the PCMH. This was not a point that had been taken by counsel for the appellant.

The authorities on amendment to add counts subsequent to committal

16. The power to amend an indictment is contained in s.5 of the Indictments Act 1915 which provides:

"Where before a 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."

17. S.32 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (AJA 1933) (as amended) permits a bill of indictment to be preferred if the requirements of subsection (2) are satisfied:

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

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

…..

(ac) the person charged has been sent for trial for the offence under section 51 ….. of the Crime and Disorder Act 1998; or

(b) the bill is preferred by the direction of the Court of Criminal Appeal or a judge of the High Court ….. Provided that -

(i) 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 to the magistrates' court inquiring into that offence as examining justices, being counts which may lawfully be joined in the same indictment ..."

Provision similar to (i) is made for cases sent for trial. It is then provided by subsection (3) that a bill preferred other than in accordance with (2) is liable to be quashed.

18. In Osieh [1996] 2 Cr App R 145, this court considered the scope of s.2 of the AJA 1933 and s.4 and 5 of the Indictments Act 1915 when an argument had arisen as to whether it was possible to amend an indictment to charge matters that had arisen after committal and not disclosed to the committing justices. Schiemann LJ, giving the judgment of the court, concluded as follows:

"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."

19. In a characteristically powerful critique the late Professor Sir John Smith QC argued in an article entitled Adding Counts to an Indictment [1996] Crim LR 889 that the judgment was probably wrong in so far as it said there was such a power. He observed that it had been generally understood that any new counts must be founded on facts or evidence disclosed in the depositions, unless a "voluntary bill" was preferred by direction of a High Court Judge. He pointed out that earlier authorities (Hall [1968] 3 All ER 1009, Martin [1961] 2 All ER 747 and Johal and Ram [1972] 2 All ER 449), Morais (1988) 87 Cr App R 9, Biddis and McNeela [1993] Crim LR 393) had not been cited to the court in Osieh. In his view, what Schiemann LJ had said in relation to the power to amend was not necessary for the decision and was obiter, as the counts were in fact based on evidence that had been before the committing justices.
20. Osieh was then considered in a court presided over by Clarke LJ (as he then was) in Hemmings [2000] 1 Cr App R 360. After referring to criticism in the 2000 edition of Archbold which echoed the criticisms of the late Professor Sir John Smith QC, Clarke LJ observed, at paragraph 21, in relation to the conclusion of Scheimann LJ that, "These seemed to us to be very sensible conclusions." He went on to add that:

"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."

21. The issue was next considered in R v Adams & Davy (14 June 2001), a decision only mentioned in Archbold News, but nowhere fully reported; we have the benefit of the transcript. Counsel for the appellant in that case drew the attention of the court to the decision in Ofori & Tackie (No.2) (1994) 99 Cr App R 223 which had not been cited in Osieh. Counsel submitted that the decision was inconsistent with Osieh. Laws LJ, in giving the judgment of the court, questioned how inconsistent Osieh and Ofori were. He said at paragraph 17:

"If the whole of any evidence relied on is entirely new, quite separate and different from the material before the Magistrates Court, as likely as not that only could only give rise to a different case altogether against a defendant, and whether by strict application of Ofori or as a matter of general fairness, in principle the court may be likely to rule that the indictment should not be amended and the Crown should, if it chose, institute separate proceedings. But if the application to amend the indictment really does no more than take forward a case already laid on the evidence, reformulating it possibly with the assistance of some additional evidence, we doubt whether that would be improper. There are two principles here: one broad, one narrow. The broad principle is that at trial a defendant should face and only face essentially the case on which he has been committed even though it may be modified one way or another. The narrow principle is that an amendment to an indictment, like any other procedural step in the law of crime, should not be allowed if it is unfair to the defendant to allow it. In our judgment the result in the present case is clear enough whether one takes a strict view as to the power to amend or a looser one."

22. The scope of permissible amendments was next considered in R v Mehmet, transcript 22 February 2002. After referring at paragraph 17 to criticisms made of the judgment in Osieh, Buxton LJ in giving the judgment of the court, continued:

"We think it important to note that this court in Osieh stressed the wide latitude given to the court under section 5 of the 1915 Act. It would be extremely surprising if that latitude had been impliedly limited by a subsequent Act in 1933 that addresses a somewhat different subject matter. Secondly, however, we are unable to agree with Sir John [Smith] that the views expressed in this court in Osieh were obiter. That is because it is quite clear from the structure of the judgment that, although the court thought that as a matter of fact the new counts were founded on matters that had been before the justices, it is plain that they would have decided the case in the way that they did even had that not been so. In those circumstances, if obiter at all, the authority is only obiter in a very restricted sense and, as a considered decision of a previous constitution of this court, will be followed by this court unless there are good reasons for departing from it. In our judgement, no good reason is shown."

23. Although Osieh was considered in R v DJJ [2006] EWCA Crim 946, the court did not add anything material to the point we have to consider. The last judgment is the judgment of Sir Igor Judge, then President of the Queen's Bench Division, who presided over a five judge constitution of this court in R v Mark Foster [2007] EWCA Crim 2869. At paragraph 66 he referred to the decision in Osieh and pointed out that argument was not addressed to the court about the correctness and applicability of the decision. He referred to the judgment of Clarke LJ in Hemming and noted that the point would have to be examined in an appropriate case after full argument. In considering whether the indictment could be amended to include all offences on which a jury might convict at the conclusion of the evidence, he said:

"To do so, overlooks the true purpose of an indictment, which is to specify the charges upon which the prosecution, not the court, is seeking a conviction or convictions. It would be likely to obscure the issues between the prosecution and the defence. It would complicate the task of the jury, which until that moment, would have been considering the evidence in the light of the charges actually included in the indictment, and it would complicate the summing up. It would also open up the possibility of additional counts being based on the evidence and at the behest of a co-defendant, and in theory at least, but subject to the unfairness principle, permit an amendment to allege a more serious charge. If the width of discretion suggested in Osieh is indeed available, the circumstances in which it may be exercised will be very rare."

The issue in this case

24. Although it was faintly suggested that the seizure on 27 December 2009 might be referable to the subsequent matters discovered on 7 July 2009 as the type of toy with the counterfeit mark was the same, it is clear in our view that this case raises for decision the question as to whether matters that have truly arisen after the committal can be added to an indictment by way of amendment.
25. In our judgment the court has power under s.5 of the Indictments Act 1915 to do so. First we consider that the analysis of Buxton LJ in Mehmet was correct and that the decision in Osieh was part of the ratio decidendi of the case and was not obiter. We have also considered again the analysis of Schiemann LJ and consider that analysis to be correct.
26. It seems to us that the wording of the Indictments Act, despite the cogent arguments of the late Professor Sir John Smith QC, is clear. S.5 confers a broad discretion. It is not subject to the provisions of s.2 of the AJA 1933; the restriction in s.2 applies to the signing of bills of indictment, not to an indictment's subsequent amendment. The safeguards in s.2 are in respect of the signing of the bill; the safeguard at the stage where an amendment is sought is the judge's duty to consider whether an amendment will cause injustice.
27. It is evident from the authorities to which Professor Sir John Smith referred that the general view of judges was that it was not possible to amend an indictment to add a count based on evidence not disclosed to the justices; a voluntary bill had to be preferred; the decisions are only explicable on that basis. Indeed it is evident that the court in Osieh was aware of the prevailing view as it said of counsel's submission to this effect:

"If they do so, then in our judgement, they are wrong."

28. However, until the decision in Osieh, the point had not actually been considered, as Professor Sir John Smith acknowledged. The fact that the received wisdom was to the contrary was, of course, a powerful factor, but it did not and does not oust analysis of the statutory provisions. As we have stated, the wording of s.5 is clear; an amendment can be made to add a count where the evidence post dates committal or the PCMH, subject to the duty of the judge to consider whether it will result in injustice.
29. Although, in our judgment, there is the power to amend the indictment to add matters subsequent to the committal, we agree with the observations of Sir Igor Judge (as he then was) that circumstances in which it might be done are likely to be rare; it should be obvious at the PCMH if there are other matters and the issue then addressed. This is, however, one of those rare cases which has arisen in the circumstances which we have explained.
30. It was plain, in our view, that the issue that was to arise on the first day of the trial was one that had been obvious since the Crown had served, on 15 September 2009, papers in relation to the seizure on 7 July 2009. One Recorder took the view that the evidence could be adduced as bad character evidence but the Recorder who eventually tried the case took the view that this was not the proper way in which the matter should be dealt with, if justice was to be done. In our view, the second Recorder, Mr Recorder Mansell, was correct in his ruling that the only fair course to this appellant was that if the Crown wished to pursue allegations in respect of the seizures on 7 July 2009, he should be charged and indicted on those matters. If, therefore, that issue had been properly dealt with on 28/29 September 2009 there would have been ample time for a fresh committal to have taken place, papers to have been served, an indictment preferred in respect of those seizures and joined to the original indictment. Mr Recorder Mansell was right, as was conceded before us. If the appellant had not been indicted on those matters and the evidence adduced simply as bad character evidence, the appellant would have been subject to cross-examination on the matters and his cross-examination could have been used in subsequent proceedings where he was indicted with offences related to those seizures.
31. However, as this was not done, there was, as Mr Armbrister very properly conceded on behalf of the appellant, another course that could have been followed. On the first day of the trial in February 2010, the appellant could have been charged with the two matters relating to the seizures on 7 July 2009. A summons could have been issued immediately and Mr Recorder Mansell asked to constitute himself under s.66 of the Courts Act 2003 as a District Judge of the Magistrates' Court. He could then have heard committal proceedings and committed the matter to the Crown Court at Hull. Provided he allowed the appellant's defence team sufficient time to serve a defence case statement and ensured the defence team had all the papers (which it had in fact had for some months) there would have been no reason why an indictment could not then have been drawn up, signed and the appellant arraigned on that indictment. That indictment could then have been joined to the existing indictment and the matter could have proceeded. Judges on the North Eastern Circuit are prepared to sit as District Judges and errors of this kind could be dealt with in this way.
32. The real issue, therefore, on the basis that the court has power to amend the indictment in the way we have set out, is whether there is any prejudice or injustice to a defendant or to the fair and proper conduct of an orderly trial if this is done. In the circumstance of this case there was no conceivable prejudice. There was simply a failure of case management; all the matters should properly have been sorted out prior to the date of the trial through one of the routes to which we have referred so that at 10.30 a.m. on the date of trial the appellant could have been tried on the indictment upon which, in the event, he was actually tried.
33. However that is merely a criticism of the way in which the case was dealt with. The prejudice was to the efficient administration of justice and to the public purse, not to the appellant. We were told that all the hearings in this matter had taken place before Recorders as each of the judges in Hull had at times acted for the appellant who had a long history of convictions. It is a matter of considerable regret that this case was not dealt with by a full-time judge who would no doubt have managed in such a way that time would not have been lost in the trial in February 2010 and the issue on this appeal, interesting though it was, would never have arisen.

Conclusion

34. We are satisfied that the Recorder acted within the discretion open to him in allowing the amendment to the indictment. We are satisfied that there was no prejudice whatsoever to the appellant and that the convictions are entirely safe.