England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		24th May 2005

1. MR JUSTICE RICHARDS: This is an appeal by way of case stated from a decision of the West Kent Justices sitting at Sevenoaks Magistrates' Court on 17th August 2004, by which they dismissed an information laid by the appellant, the Director of Public Prosecutions, against the respondent, Mr Everest. The case arose out of the lighting of a bonfire by the respondent near a road while he was doing work in a garden. The smoke from the bonfire was said to have blown across the road, obscuring visibility and causing an accident.
2. The facts relating to the proceedings, as they appear from the case stated, are these. On 8th March 2004 an information was preferred by the appellant that the respondent on 1st December 2003 at Edenbridge in the County of Kent, without lawful authority or excuse, lit a fire on or over a highway, namely Ide Hill Road, which consisted of or comprised a carriageway, in consequence of which a user of the highway was injured, interrupted or endangered contrary to section 161(2)(a) of the Highways Act 1980.
3. The information was listed for first hearing on 5th April 2004. The respondent appeared unrepresented and entered a not guilty plea. The matter was adjourned to a pre-trial review on 21st May 2004. The respondent appeared and confirmed that he would represent himself throughout the proceedings. The appellant was represented on that occasion by a Crown prosecutor. Following review, the trial date was fixed for 17th August 2004. The time allocated was three quarters of a day.
4. On 1st July 2004 the court received a facsimile message from the appellant indicating that statements had been received from a further four witnesses and requesting that the trial on 17th August be booked for a full day's hearing.
5. On 17th August the respondent attended and the Justices heard the evidence on behalf of the appellant. The appellant then closed his case. Following closure of that case, the appellant sought to amend the information so as to charge an offence contrary to section 161A(1)(a) of the Highways Act 1980, namely lighting a fire on any land not forming part of a highway which consists of or comprises a carriageway or and in consequence the user of any highway which consists of or comprises a carriageway is injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire. The Justices refused the application to amend and, in consequence, dismissed the information against the respondent of their own motion on the basis that there was no case for him to answer.
6. The statutory provisions, to which I have already referred, are these. Section 161(2) of the 1980 Act provides:

"If a person without lawful authority or excuse --

(a) lights any fire on or over a highway which consists of or comprises a carriageway ... and in consequence a user of any highway is injured, interrupted or endangered, that person is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale."

Section 161A provides:

"(1) If a person --

(a) lights a fire on any land not forming part of a highway which consists of or comprises a carriageway ... and in consequence a user of any highway which consists of or comprises a carriageway is injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire, that person is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale.

(2) In any proceedings for an offence under this section it shall be a defence for the accused to prove that --

(a) that at the time the fire was lit he was satisfied on reasonable grounds that it was unlikely that users of any highway consisting of or comprising a carriageway would be injured, interrupted or endangered by, or by smoke from, that fire or any other fire caused by that fire; and

(b) either --

(i) that both before and after the fire was lit he did all he reasonably could to prevent users of any such highway from being so injured, interrupted or endangered; or

(ii) that he had a reasonable excuse for not doing so."

7. In the case stated, the Justices refer to the rival arguments before them and state that they were referred by their clerk to R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] 162 JP 635. That case concerned a charge of robbery. More than six months after the date of the alleged offence the prosecution sought to prefer alternative charges including one of common assault. The question arose as to whether the Justices had been correct to decline jurisdiction on the ground that, more than six months having elapsed since the date of the offence, new proceedings for the summary offence of common assault were time barred and the differences between the offences were too great for the original charge to be amended.
8. The Divisional Court, consisting of Lord Bingham CJ and Dyson J, quashed the refusal to allow the amendments. In the course of his judgment, with which the Lord Chief Justice agreed, Dyson J referred to the relevant provisions of the Magistrates' Court Act 1980, in particular Section 123(1) which provides:

"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."

He also referred to the six-month limit contained in section 127 of the 1980 Act. He then referred to a number of authorities and continued (at 639F):

"In my judgment, the following principles can be derived from the authorities:

(1) The purpose of the six-month time-limit imposed by s.127 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 gave rise to the original offence ...

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. In exercising their discretion the justices should pay particular regard to the interests of the defendant. If an amendment will result in a defendant facing a significantly more serious charge, that should weigh heavily -- perhaps conclusively -- against allowing the amendment after the six-month time-limit has expired.

There may also be cases where a late application to amend by the prosecution would give rise to an application for an adjournment. If the justices were to conclude that an amendment to the information would necessitate an adjournment, that might well be a good reason for refusing an application to amend in view of the basic purpose of the six-month time limit imposed by s.127 of the 1980 Act. The need for an adjournment on that ground ought, however, to be rare since the amended offence will arise out of the same or substantially the same facts as the original offence."

9. In the case stated, after the reference to McPhee and Gallagher, the Justices give the following reasons for reaching the decision they did to refuse the amendment:

"We were of the opinion that it was not in the interests of justice to amend the information because:

(i) Under paragraph 2.2 of the Code for Crown Prosecutors it is the duty of the appellant to ensure that a defendant is prosecuted for the right offence. Having heard the evidence for the appellant it was clear to us that at no time had any witness suggested the fire was lit on or over the highway. In our opinion, therefore, the appellant had failed, from the outset of these proceedings, to prosecute the respondent for the right offence.

(ii) The appellant had further opportunities to review the file and seek amendment of the information prior to trial, at pre-trial review stage and following 1st July 2004 when further witness statements for the appellant were received.

(iii) The original information was of strict liability and the burden of proof rested entirely on the appellant. The amendment, if allowed, would provide the respondent with the statutory defence ...

The respondent would have to prove, on the balance of probabilities, the statutory defence. We considered it would be inequitable to place this burden on the respondent immediately prior to him giving evidence, particularly as he had not prepared his case on this basis. Furthermore, the respondent had cross-examined the appellant's witnesses on the basis of the original information. A decision to allow the information to be amended would require a rehearing of the prosecution witnesses for the purpose of cross-examination. This went beyond a simple amendment to cure a technical defect.

(iv) A person guilty of an offence contrary to section 161(2)(a) Highways Act 1980 shall be liable to a fine not exceeding level 3 (£1,000) on the standard scale. A person guilty of an offence contrary to section 161A(1)(a) of the above Act shall be liable to a fine not exceeding level 5 (£5,000) on the standard scale. We considered that seeking to amend to a higher tariff offence at this late stage in the proceedings to be unjust, particularly in view of all the previous missed opportunities to seek the amendment.

(v) We took into account the fact that the respondent was unrepresented throughout these proceedings."

10. Mr Hall, on behalf of the appellant, submits that the Justices erred in reaching that decision. The discretion to permit an amendment of the kind sought is wide and should ordinarily be exercised in favour of an amendment unless that results in injustice to the defendant. Mr Hall cited, in particular, R v Director of Public Prosecutions, ex parte James [2004] EWHC Admin 1663, reported at 168 JP 596, and Morriss v Lawrence [1977] RTR 205.
11. Mr Hall submitted that any possibility of injustice to the defendant could and should have been cured by the offer of an adjournment so that he might be given a fair chance to meet the case against him. The alleged misdoing in this case (namely the lighting of a fire from which there were consequences adverse to users of the highway) was the same under the original charge and under the proposed amended charge, which told in favour of allowing the amendment notwithstanding that six months had elapsed between the date of the alleged offence and the proposed amended charge.
12. Mr Hall conceded that the proposed amended charge carried a more severe penalty than the original charge but pointed out that the amended charge provided the respondent with a statutory defence, whereas the original charge was an absolute offence. He submitted that the nature of the respondent's cross-examination of prosecution witnesses was consistent with reliance upon the statutory defence. He suggested that the Justices had been wrong to conclude that the amendment would require a re-hearing of the prosecution evidence for the purpose of cross-examination, and were wrong to conclude that the statutory defence placed an inequitable burden on the respondent.
13. As regards the question of re-hearing, Mr Hall said that the prosecution evidence came entirely from motorists, who did not give evidence concerning the lighting of the fire by the respondent. In those circumstances, it would not be necessary to recall the prosecution witnesses. The statutory defence would hinge entirely upon the respondent's own evidence and that of any supporting witnesses he might call.
14. For the respondent, Mr McCalla submitted that the Justices exercised their discretion correctly. They were right to have regard to the appellant's failure to conduct the litigation proficiently and fairly, and they were right to conclude that the amendment would result in injustice to the respondent. Having regard to the substantial increase in penalty, and the fact that the amendment would place upon the respondent the burden of proving, on the balance of probabilities, the statutory defence, that would inevitably have led the respondent to conduct his defence differently. Witnesses who had already given evidence would have to be recalled for further cross-examination. The respondent himself would have to give evidence relevant to the statutory defence. The need for an adjournment would have been a good enough reason to refuse the application to amend, having regard to the basic purpose of the six-month time limit; but, in addition, an adjournment would not have cured any potential injustice, and any further delay would increase the difficulties inherent in proving the defence, given the lapse of time. Moreover, the respondent was unrepresented and would have been prejudiced by the imposition of the burden of proving a statutory defence at such a late stage in the proceedings.
15. My conclusions in relation to those rival submissions are as follows:
16. (1) The Justices plainly applied the right legal test. They were referred to McPhee and Gallagher which sets out the relevant legal principles, to which the other authorities cited before me do not add materially. The Justices approached the matter in accordance with the principles set out in that case. They recognised that they had a discretion to amend, even at the close of the prosecution case and outside the six-month time-limit in section 127, and that that discretion should be exercised by reference to the interests of justice.
17. (2) The considerations taken into account by the Justices in considering the exercise of their discretion were all legally relevant considerations. To spell that out in more detail, the first such consideration was the evident, and frankly lamentable, failure of the appellant from the outset to prosecute the right offence, and the failure to review the file or to review it intelligently and to seek an amendment at earlier stages of the proceedings when the opportunity arose. A further consideration was that this went beyond a simple amendment to cure a technical defect. It involved a different offence with a new statutory defence not available under the offence originally charged, albeit that it related to the same alleged misdoing. Moreover, it would expose the respondent to a different offence and the burden of proving the statutory defence in circumstances where he had already established a complete defence to the offence originally charged.
18. The Justices were also entitled to take account of their view that it would be unfair to place that burden on the respondent immediately prior to his giving evidence and when he had not prepared his case on that basis. Likewise, they were entitled to take account of their view that this went beyond the need for an adjournment. It would require a re-hearing of the prosecution evidence for the purposes of cross-examination, since the respondent had cross-examined the witnesses on the basis of the original information, and further questions might appropriately be asked relevant to the statutory defence. As to that, I reject Mr Hall's suggestion that no rehearing was necessary. This was a matter for the Justices to assess and on the material before this court, it is impossible to conclude that the assessment they made was not one reasonably open to them.
19. Another relevant consideration was that the amendment would result in the respondent facing a more serious offence with a maximum fine at level 5 rather than level 3, which represented a substantial increase in the context of a case of this kind. Finally, the Justices were entitled to take account of the fact that the respondent was unrepresented, something which, I would observe, made it all the more difficult for him if he had prepared to fight the case on one basis and was suddenly faced with a different offence. All the matters referred to by the Justices were relevant considerations.
20. (3) The conclusion reached by the Justices was well within the limits of a reasonable exercise of discretion.
21. (4) Accordingly there was, in my judgment, no legal error and no basis for intervention by this court.
22. It follows that the question raised in the case stated, namely: "Were we correct to refuse the appellant's application to amend the information from section 161(2)(a) to section 161A(1)(a) of the Highways Act 1980 following closure of their case", must be answered in the affirmative, in the sense that there was no legal error affecting the Justices' decision. It also follows that the appeal must be dismissed.
23. Any further matter?
24. MR MCCALLA: No.
25. MR JUSTICE RICHARDS: Thank you very much indeed.