England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		3 March 2008

MR JUSTICE SILBER:

1. Andrew Thornhill seeks to quash the decision made at the Uxbridge Magistrates' Court on 22 May 2007 by which they permitted the prosecution to amend an existing information and to lay a new information in the form of a charge of failing to provide a specimen of urine. Sullivan J granted permission to the claimant to pursue this application which raises the issue of when the prosecution can lay a fresh information in addition to, or in substitution for, an existing information after the prescribed six month period has elapsed.
2. On the evening of 19-20 July 2006 the claimant was arrested near the scene of a road traffic accident. He was conveyed to a hospital where it is alleged that he refused treatment. He was then taken to a police station where the drink-drive procedure was undertaken. It appears to be common ground that the claimant had a medical reason precluding him from providing a specimen of breath. He was requested to provide instead a specimen of urine but he refused.
3. On 28 November 2006 the claimant was charged with dangerous driving, failing to provide a specimen of breath, failing to surrender and driving without insurance.
4. On 18 December 2006 the claimant appeared in front of the Uxbridge Magistrates' Court where he entered not guilty pleas to the charges of dangerous driving and failing to surrender. He did, however, plead guilty to the charge of failing to provide a specimen of breath. It became clear at a later stage, and it is accepted by the Crown, that there should not have been a plea of guilty to the charge of failing to supply a specimen of breath. The Crown made an application to vacate the plea and applied to amend the indictment so that the charge of failing to provide a specimen of urine was introduced. The claimant's legal advisers resisted that application, but the magistrates took the view that the Crown should be permitted to amend the existing information and to lay the new information before it.
5. The backdrop to this application is set out in two provisions of the Magistrates' Court Act 1980. Section 123, so far as relevant, 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.

...."

Section 127, so far as relevant, provides:

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

It is quite clear that the amendment in his case was applied for after the period of six months had elapsed.

6. The relevant principles dealing with an application of this sort were explained by Dyson J giving the leading judgment on an appeal to this court in R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] 162 JPR 635, in which it was said:

"(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."

Dyson J (with whose judgment Lord Bingham CJ agreed) said later in his judgment:

"In exercising their discretion the justices should pay particular regard to the interests of the defendant."

In ex parte McPhee and Gallagher the original charge was one of robbery, but more than six months after the date of the offence the prosecution sought to introduce charges of common assault and theft. The justices refused to permit the amendments, but the Divisional Court quashed the refusal to allow the amendments because the new charges arose from precisely the same set of circumstances which had given rise to the count of robbery.

7. More recently in R (Director of Public Prosecutions) v Everest [2005] EWHC 1124 (Admin), the prosecution appealed by way of case stated against a decision of the magistrates to refuse to allow the amendment of an information laid under section 161 of the Highways Act 1980 which alleged that the defendant lit a fire on or over a highway. The requested amendment was to charge the offence of lighting a bonfire on land which was not part of a highway but so as to endanger users of the highway. The offence, like the offence of lighting an offence on the highway, is not an absolute offence but it carries a statutory offence and also significantly a higher level of fine. Richards J dismissed the prosecution appeal.
8. There is a substantial difference, in my view, between the decision in Ex parte McPhee and Gallagher and the present case because the wrongdoing in the present case was very different from that which led to the original charge. There is a distinct difference between a failure to provide a specimen of urine and one of breath. In those circumstances the decision of the justices should be quashed. It is unnecessary for me to consider whether the amendment was or was not in the interests of justice.
9. For those reasons I quash the decision. Thank you very much for your help.
10. MISS LEVINSON: Thank you. My Lord, may I make an application for costs to be assessed on taxation?
11. MR JUSTICE SILBER: Yes. Do you have a certificate?
12. MISS LEVINSON: I do. I do not have a copy with me.
13. MR JUSTICE SILBER: On presentation of that, you will be entitled to that order.
14. MISS LEVINSON: Thank you.
15. MR JUSTICE SILBER: Thank you very much indeed.

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