England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT

		Royal Courts of Justice The Strand London
		7 February 2000

1. THE LORD CHIEF JUSTICE: I will ask Mr Justice Klevan to give the first judgment.
2. MR JUSTICE KLEVAN: This is an application for judicial review, permission to apply having been granted by Jowitt J. There were three applicants initially, but only Joan Stevens has been granted legal aid and the application proceeds in her name alone to save the cost to the Legal Aid Fund.
3. On 1 April 1999, Kelly Ballard alleged that she was assaulted by Christopher Parsons, Joan Stevens and Laura Wall. On 17 August 1999 Laura Wall was charged with assault occasioning actual bodily harm. The defendants Parsons and Stevens were charged on that date also.
4. On 28 September 1999 the applicant appeared before a stipendiary magistrate at the Thames Magistrates' Court to answer the charge that on 1 April 1999, at Roman Road, Bow, she did assault Kelly Ballard, thereby occasioning her actual bodily harm, contrary to section 47 of the Offences Against the Persons Act 1861.
5. The applicant appeared again on 1 October 1999 when the advocate for the prosecution applied for an adjournment of two weeks in order for the Crown Prosecution Service to obtain medical evidence of the bodily harm alleged to have been caused to the complainant, Kelly Ballard. The stipendiary magistrate granted that application.On 15 October the applicant appeared before Mr Inigo Bing, the stipendiary magistrate, at the Thames Magistrates' Court. The prosecution was represented and at the outset of the hearing the advocate representing the prosecution handed to the court clerk a proforma document MC/D4 of the Crown Prosecution Service headed "Further Charges". In the space of the document marked "Charges (Amended charges marked 'A')" has been written "on 1st April 1999 at Roman Road, Bow E3, assaulted Kelly Ballard by beating her."
6. Counsel for the applicant on that occasion pointed out that more than six months had elapsed since the commission of the offence, and he argued that the summary offence was time-barred. The stipendiary magistrate very wisely did not wish to deal with the matter at that time. He wanted to hear full argument. He decided to adjourn the matter for it to be argued fully. On 12 November the stipendiary magistrate heard full argument. On 16 November he ruled that the prosecution were entitled to proceed on the charge preferred on 15 October.
7. Mr Stein, both in his written grounds and in renewing the submissions this morning, argues the matter in this way. He says that the applicant's complaint is that the stipendiary accepted jurisdiction to hear a charge of common assault against her. The Crown had laid a charge of causing actual bodily harm, contrary to section 47 of the Offences Against the Person Act, some three days short of six months after the alleged offence. He submits that some fifteen days after that six-month period the prosecution (he contends) withdrew the section 47 charge and proceeded to lay an information charging an offence under section 39 of the Criminal Justice Act 1988. He argues that the stipendiary magistrate's decision was irrational and wrong in law.
8. The laying of an information is provided for in section 1(1) of the Magistrates' Courts Act 1980. So far as material it provides:

"Upon an information being laid before a justice of the peace .... that any person has .... committed an offence, the justice may ....

(a) issue a summons directed to that person requiring him to appear before a magistrates' court for the area to answer to the information ...."

9. There is a time limit in respect of summary offences. It is to be found in section 127 of the Act which provides:

"(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information .... unless the information was laid .... within 6 months from the time when the offence was committed....

(2) Nothing in --

(a) subsection (1) above; ....

shall apply in relation to any indictable offence."

10. There is no specific power of amendment provided by the Act or the Magistrates' Court Rules 1981. But the decisions of the court recognise that there is such power. Section 123 of the Act is relevant to give guidance on the exercise of the power to amend. It provides:

"(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint.

(2) If it appears to a magistrates' court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing."

11. In R v Scunthorpe Justices, ex parte McPhee and Gallagher [1999] JP 635, Dyson J, after reviewing the authorities, set out the principles to be derived from them at page 639F:

"(1) The purpose of the six-month time-limit imposed by s127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission.

(2) Where an information has been laid within the six-month period it can be amended after the expiry of that period.

(3) An information can be amended after the expiry of the six-month period, even to allege a different offence or different offences provided that:

(i)the different offence or offences allege the 'same misdoing' as the original offence; and

(ii)the amendment can be made in the interests of justice.

These two conditions require a little elucidation. The phrase 'same misdoing' appears in the judgment of McCullough J in Simpson v Roberts. In my view it should not be construed too narrowly. I understand it to mean that the new offence should arise out of the same (or substantially the same) facts as give rise to the original offence."

12. The applicant here contends that the charge of assault occasioning actual bodily harm was withdrawn on 15 October 1999 and therefore section 127 applies. Section 123, he argues, does not apply. He contends that the Crown Prosecution Service did not amend the information; rather they withdrew one charge and separately laid a different information alleging common assault. As such the applicant, through counsel, argues that section 123 cannot be relevant; the information charging the summary offence was laid more than six months after the alleged offence and the stipendiary magistrate had no jurisdiction to hear the complainant. The applicant's contention is that, because the prosecuting advocate at the hearing on 15 October did not use the word "amend" the original charge but indicated that the prosecution wished to "withdraw" that charge and substitute or proffer a charge of common assault, there is no avoiding the consequences of section 127.
13. In his affidavit the stipendiary magistrate outlines the facts and gives his reasons for allowing the prosecution to proceed on the charge preferred on 15 October. At paragraph 8 he states:

"On 12th November 1999 I heard full argument from the applicant's counsel and I was referred to the statutory and case law material relied on in this application. Counsel also submitted that, on the facts, it was not in the interests of justice for the prosecution to proceed. I was addressed in considerable detail about what the applicant's counsel contended was the true meaning of the judgment of Dyson J in R v Scunthorpe Justices, ex parte McPhee and Gallagher, a decision of this honourable court. I also heard submissions from the advocate on behalf of the Crown Prosecution Service and I reserved my decision.

14. On 16th November 1999 I ruled that the prosecution were entitled to proceed on the charge preferred on 15th October 1999. My reasons were as follows:

(i) I was of the opinion that if the elements of the summary offence preferred out of time were explicitly or by implication included in the either way offence preferred initially then the prosecution could proceed on the summary offence provided it was in the interests of justice to do so.

(ii) I was of the opinion that despite the absence of the word 'amend' in Mr West's application on 15th October the reality and substance of the matter was that the application more closely resembled an amendment of the original charge than a change of heart by the prosecution to abandon the original allegation and to pursue a new allegation.

(iii) I considered that the reality and substance of the case was that the Crown Prosecutor had amended the original charge .... by correcting a perceived fault or error in it, namely the allegation that the assault had occasioned actual bodily harm. The removal of this allegation in the new charge was not, in reality, a substitution because the essence of the allegation remained the same.

(iv) I did not consider that the applicant was prejudiced because at all times since the date of the original charge she knew and appreciated the essence of the case against her.

(v) I did not consider that the judgment of this honourable court in ex parte McPhee and Gallagher was confined to its particular facts. I considered that the judgment had a general application, in particular an application to the facts of this case and I felt I should apply it to this case."

15. What was being sought in fact was an amendment of the original charge rather than any change of heart by the prosecution. That was the reality of the matter. Counsel today freely concedes that it is a highly technical point that he takes. In my judgment the stipendiary magistrate's analysis was correct. He applied the proper principles. If this matter had been before the Crown Court, prosecuting counsel would have been seeking leave to amend the indictment by adding a count of common assault. He would not be seeking to quash the existing indictment. In reality that is what has happened before the stipendiary magistrate: an amendment was being made to the original charge or information. I for my part am fortified in that view and have gained further assistance from the judgment of Dyson J in ex parte McPhee and Gallagher at page 640B, where he says this:

"Our attention has been drawn to a question and answer in the Justice of the Peace issue dated August 23, 1997 under the heading 'Practical Points'. The question concerned a case in which a defendant had been charged with an offence under s47 of the Offences Against the Persons Act 1861. The defendant offered to plead guilty to common assault under s39 of the Criminal Justice Act 1988. The question asked was whether it was right to allow an amendment to the information to add an alternative offence of common assault after the expiry of the six-month time-limit. The questioner said that some justices rely on the Newcastle Justices' case as authority 'for doing almost anything in relation to an amendment'. Others, it seems, are of the view that an amendment cannot substitute an altogether different offence. The answer given to the question was that the amendment from a s47 offence to a s39 offence should not be allowed, since it 'goes beyond mere substance or form. The amended charge alleges a completely new offence under a different statute'.

I respectfully disagree with that advice. In my view the two offences are plainly the same misdoing or arise out of the same (or substantially the same) facts. The only difference is that in order to prove the offence under s47 of the Offences Against the Persons Act an additional element has to be established, namely that some harm was caused to the victim. Once they are satisfied that the amended offence or offences arise out of the same or substantially the same facts as the original offence, the justices must go on to consider whether it is in the interests of justice to allow the amendment."

16. The position here is as Dyson J outlined, save in the present case there has been no offer to plead guilty. That fact alone does not alter the principle laid down. In allowing the amendment, was the stipendiary magistrate acting unreasonably? In my judgment he was not. The applicant intended to plead not guilty to the charge of assault occasioning actual bodily harm. She can continue to do so in respect of the charge of common assault. There is no injustice done to her. The case against the applicant to all intents and purposes is the same after the amendment as before. The applicant has not been misled or prejudiced by the amendment. She knows the case against her. She has not been deprived of any defence. The evidence to be adduced is no different after the amendment; the effect of the amendment, in fact, is to reduce the gravity of the original charge. In my judgment, far from being plainly wrong, the stipendiary magistrate exercised his discretion reasonably. In his judgment it was in the interests of justice to allow the amendment. In my judgment it was in the interests of justice to allow it. Accordingly, for my part, I would dismiss this application.
17. THE LORD CHIEF JUSTICE: I agree. One of the cases on which the applicant relied was R v Network Sites Ltd, ex parte London Borough of Havering (1997) 161 JP 513. In that case two informations were laid against the defendant within the six-month period, each of them for different reasons being defective. The prosecuting authority then started again out of time. The defendant was convicted and appealed to the Crown Court which upheld the conviction. There was then an appeal by case stated to this court where it was held that the justices had had no jurisdiction to hear the third information. The facts of that case, as summarised by Mance J at page 515, were these:
18. "The reason why three informations and summonses were laid and issued was this, that on the first occasion when an information was laid, which was June 7, 1995, and a summons was issued by a magistrate, there was an acknowledged defect in the service which the respondent borough then purported to effect. The second information was, therefore, laid and a second summons obtained. That was sent to what, it is now submitted, was a proper address, namely the registered address of the appellant. However, the view was apparently taken, when the appellant did not appear before the magistrates' court on the date expressed in the second summons, that the second summons also had been for some reason defectively or ineffectively served and that it was necessary to procure a third summons. For that purpose the third information was laid and on this occasion that took place outside the six-month period; it led to the third summons which was, on any view, properly served."
19. On those facts it was, as I respectfully agree, quite plain that the third information was laid out of time. But the facts were in my judgment quite different. The defendants here were before the court by virtue of the original process. They were never discharged. That process was never brought to an end. What happened was that the prosecutor indicated in substance that he did not wish to proceed on the existing charge, but did want to proceed on a lesser charge. Counsel for the applicant acknowledges that if counsel had used the word "amend" he could have had no complaint, subject to any argument on the merits. The same would in my judgment be true if the stipendiary magistrate had asked counsel whether he was seeking in substance to amend and counsel had answered that he was. It is true that such an exchange never took place. But it is to give very great weight to form and to ignore the substance of the matter to hold the absence of such an exchange to be determinative.
20. For reasons given by my Lord, I agree that this was in substance an application to amend and the stipendiary magistrate was fully entitled to grant it.
21. MR STEIN: My Lord, I am legally aided.
22. THE LORD CHIEF JUSTICE: We make an order for detailed assessment of your costs, Mr Stein.
23. MR STEIN: I am obliged, my Lord.
24. THE LORD CHIEF JUSTICE: Thank you very much. We are most grateful for your help, both orally and in writing, and also for yours, Mr McGuinness. Thank you.