APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C478/98
OPINION OF THE COURT
delivered by LORD McCLUSKEY
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
STUART DOUGLAS WALKER
HER MAJESTY'S ADVOCATE
Act: Hamilton; Drummond Miller
Alt: Menzies, A.D.; Crown Agent
24 September 1999
The appellant appeared in the High Court sitting in Inverness to answer an Indictment containing three charges. The first was of assault and robbery committed at shop premises in Aberdeen on 8 February 1998. The second was of assaulting Michael John Smith and Kelly-Marie Greig by threatening them with violence. The third was a charge of attempting to pervert the course of justice by sending letters by post to Michael John Smith inter alia threatening him and Kelly-Marie Greig with violence if they gave evidence against him. After trial he was found guilty of all three charges, charges 1 and 3 having been amended at the conclusion of the evidence; the convictions were in respect of these charges as amended and in respect of charge 2 as libelled.
The evidence adduced in support of charge 2 was to the effect that after brandishing the knife referred to therein the appellant said to the complainers, "Don't bother grassing me, I know where you stay". There was evidence adduced in relation to charge 3 that, on the day on which he was originally intended to give evidence in court against the appellant, Michael John Smith received one of the letters containing both threats of violence and an offer of money conditional upon his not giving evidence against the appellant. It was clear upon the evidence that the jury were entitled to conclude that the events referred to in charges 2 and 3 were connected with each other. It was not in dispute before this court that the evidence was sufficient in law to warrant convictions upon all the charges as presented to the jury. A sentence of five years imprisonment was imposed in respect of charges 1 and 2. On charge 3 the sentence imposed was three years imprisonment to be consecutive to the sentence on charges 1 and 2.
The point taken in this appeal relates only to the conviction on the amended charge 3. The submission is that the trial judge erred in allowing that charge to be amended.
Charge 3 as it appeared on the indictment contained the averment that,
"knowing that Michael John Smith and Kelly-Marie Greig would be called as witnesses for the Crown to give evidence against you, you did between 23 May 1998 and 4 June 1998, both dates inclusive, at HM Prison, Aberdeen write and send by post two letters to said Michael John Smith at 23 Graigievar Crescent, Garthdee, Aberdeen which letters contained threats of violence towards Michael John Smith and Kelly-Marie Greig if they attended at Court to give evidence against you and an offer of money as an inducement to said Michael John Smith and Kelly-Marie Greig not to attend at Court and all this you did with intent to pervert the course of justice and for the purpose of intimidating or otherwise preventing said Michael John Smith and Kelly-Marie Greig from giving evidence as aforesaid and you did thus attempt to pervert the course of justice."
When the diet was called, and before the jury was empanelled, the appellant's counsel tendered, and the court allowed to be received, a Special Defence of Alibi asserting that, between the dates specified in charge 3, the appellant was not in HM Prison Aberdeen but in HM Prison Inverness. The Crown took no objection to the late lodging of this Special Defence. (They may have received notice of it a day or two earlier, though that is not certain; however, it is of no materiality now.) The Crown did not seek any adjournment to investigate the facts averred in the Special Defence. Nor did the Crown seek leave to amend the indictment. The jury having been empanelled and sworn, the trial proceeded on the unamended indictment. There was no motion by the Crown to allow the terms of charge 3 to be amended until after all the evidence had been led. By then the appellant had given evidence and other evidence had been led for the appellant.
Once all the evidence had been led it was clear that two letters containing threats and inducements were delivered by post to the address of Michael John Smith. The second of these letters bore the appellant's fingerprint; and the envelope in which it arrived bore a prison service stamp, though the prison from which that letter might have come was not specified on the stamp or otherwise. The trial judge also tells us in his Report that the evidence suggested that the "handwriting" in each letter might have been different. The letters were both handprinted; but the essential point was that, even without the benefit of expert opinion, it appeared quite possible that they had been written by different persons; and it would certainly have been open to the jury so to conclude. The evidence also showed that the appellant had indeed not been in HM Prison, Aberdeen, during the period specified in charge 3, but had been in HM Prison Inverness, as the Special Defence asserted. It was thus clear by that stage that the Crown was unlikely to be able to establish that the appellant did, between the dates specified, "at HM Prison Aberdeen write and send by post" either letter; for he had not been in HM Prison Aberdeen at the dates averred; and, as the letters appeared to have been written by different hands, it would follow that he could not be shown to have written both, even if the evidence could support the inference that he had personally written either. As there was no handwriting evidence available as to the authorship of either letter - the appellant having exercised his right not to supply the investigating police officers with a specimen of his handwriting - it could not be proved that he had written either letter, despite the finding of his fingerprint on the second letter; for the finding of the fingerprint, though it was evidence clearly connecting the appellant to that letter, was not apt to establish that he had personally written it, as the indictment alleged. Thus the Crown could not establish that he had personally written and/or sent either letter, and the evidence showed that he had not done anything in HM Prison, Aberdeen during the period averred. In these circumstance, the Advocate-depute moved the court to allow the indictment to be amended. The effect of the amendments proposed to charge 3 was to replace the words "write and send" with the words, "or HM Prison Inverness write or cause to be written and send or cause to be sent".
Counsel for the appellant opposed the motion for amendment insofar as it related to charge 3, on the ground that it came too late, and also because steps would have to be taken by the defence to investigate the new specification of the manner in which the offence had been committed, and submitted that the new averments could give rise to a need to interview other prisoners. The trial judge, after hearing submissions, granted the motion and allowed the indictment to be amended as proposed. There was no motion for an adjournment or for the leading of further evidence. Counsel for the appellant withdrew the Special Defence. The next step was that the Advocate-depute addressed the jury and proceedings followed the normal course through to the conviction of the appellant.
As the trial judge recognised, there were two distinct aspects to the amendment. The first was that the place where the appellant was said to have carried out the activities which were concluded by the sending of the two letters was to be altered by adding the reference to HM Prison, Inverness. The second was that it was now to be alleged not simply that the appellant had personally written and sent the letters but that alternatively he caused somebody else - unidentified - to do the writing and/or sending, that is to say that, if he had not acted as the principal actor, he had acted in one or both respects through the agency of some other unidentified person, being a person either in the same prison as the appellant or in the other prison specified in the amended charge or even somebody not confined in either establishment. This alteration to the specification of the way in which, the place where, and the person or persons by whom the letters were written or sent provided a much broader basis upon which to seek a conviction against the appellant. It obviously made the Special Defence irrelevant, as counsel recognised by withdrawing it when the court allowed the indictment to be amended. Because there was no other evidence led after the amendment was allowed, there was no material before the jury as to the possible identity of any person or persons who might have acted as the appellant's agents in relating to the writing and/or sending of the two letters at or from the place or places where they were written and sent.
The issue in this appeal is whether or not in allowing the opposed amendment of charge 3 the trial judge caused a miscarriage of justice. It is well established that the question of whether or not an amendment should be allowed is one for the judge who tries the case, and the court of review will not lightly interfere with the exercise of his discretion, unless it be shown that the public interest or the interest of the accused is affected: Renton & Brown, Criminal Procedure (6th Edn.), 8-75; Cumming v Frame (1909) 6 Adam 57. The governing statutory provision is contained in section 96 of the 1995 Act. Subsection (1) thereof provides, "No trial shall fail or the ends of justice be allowed to be defeated by reason of any discrepancy or variance between the indictment and the evidence." Subsection (2) makes an amendment to cure any such discrepancy or variance competent at any time prior to the determination of the case "unless the court sees just cause to the contrary". Subsection (3) provides further safeguards: "Nothing in this section shall authorise an amendment which changes the character of the offence charged, and if it appears that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just".
The trial judge, in granting or refusing an opposed motion by the Crown to amend a charge in an indictment, is exercising a discretion. It is clear, however, that if the trial judge has rested the exercise of his discretion upon an erroneous basis then the decision is open for reconsideration in this court. We deal first with the submission that, in allowing the charge to be amended by adding the reference to HM Prison, Inverness, the trial judge erred. In our opinion, it is plain that if the amendment had been confined to the addition of the reference to HM Prison Inverness the trial judge would have been perfectly entitled to allow the charge to be amended. The place where the letters were written or from which they were despatched was not of the essence of the charge (provided it could be shown that the accused was in that place); so a failure to prove that the writing or sending took place in HM Prison, Aberdeen was not to be treated as barring the Crown from seeking a conviction. For the essence of the charge was that the appellant sent letters by post so as to reach the person to whom they were addressed; the precise place from which they were despatched was of no materiality. There was no unfairness in making this particular alteration to the narrative because, as the terms of the Alibi demonstrated, the appellant was not taken by surprise by the belated assertion that he was in Inverness at the material dates. Of course, when the Special Defence was first tendered the Crown could, and should, have made inquiry of the prison authorities as to the appellant's precise whereabouts during the relevant period. That presumably could have been done very quickly and should have lead to a motion to amend the charge in this respect at a very early stage in the proceedings. However, the mere fact that the Crown appear to have been somewhat dilatory about making the necessary inquiries would not justify a refusal of an amendment which was required for the purposes envisaged by section 96 of 1995 Act. Any prejudice to the appellant in the preparation of his case could have been no more than minimal; and it does not appear that such prejudice was asserted when the proposed amendment was moved.
The other part of the amendment was, however, much more far-reaching in its effect and possible consequences for the appellant. The alteration did not change the character of the offence charged. What it did was to introduce the possibility that the accused was responsible for the issuing of the offending letters not as their author and sender but as the instigator of their being written and sent; in other words, it materially varied the averments about how the offence had been perpetrated. The appellant was continuing to maintain his plea of not guilty, but found that he could no longer rely on his own evidence to the effect that he neither wrote nor sent either letter. Even if the jury accepted his evidence, already given, to that effect, he had nothing that he could place before the jury as to his possible involvement with the unidentified person or persons whom it was now being said he might have instigated to issue the letters. If someone else had issued the letters, the accused had had no cause, prior to the amendment, to inquire into the circumstances in which that came to be done. In these circumstances, it is hardly surprising that counsel should have argued that the proposed amendment would necessitate the taking of the steps mentioned by him. The trial judge does not deal with this aspect of the matter at all in his Report to this court. What he says is,
"The second part of the amendment added to the allegation that the accused wrote and sent the letters, the further alternative allegation that he caused them to be written or sent. That motion was made in response to evidence that the handwriting in each may have been different. That again would have been apparent to those representing the Appellant from the time when the letters were lodged as productions and I allowed that amendment under the same section of the Statute on the basis that no prejudice was caused to the Appellant thereby."
We do not understand how the fact that the differences in the handwriting of the two letters would have been apparent when the letters were lodged should have prompted the defence to inquire into the matters that the amendment raised for the first time. On the contrary, the defence would almost certainly have regarded the differences in the handwriting as being a powerful indicator that the appellant could not have been the writer of both letters, and that therefore there was a patent flaw in the charge as read to the jury. There was no compelling reason to investigate the authorship of the letter if the defence were content to rest upon the appellant's own evidence that he was neither the author nor the sender of either letter: and, given the fact that at the stage of preparation he knew he was not in the prison from which the Crown were alleging that had been despatched, he had still less reason to investigate their provenance. We are satisfied that if the original indictment had been in the terms of the amended indictment and if the accused had maintained to his legal advisers that he had had no part in the writing or sending of either letter, it would have been prudent and appropriate to make a much wider investigation of the provenance of the letters than was necessary in the light of the actual charge which he faced. It was, in our view, clear that it would have been impossible at the stage which the trial had reached to suspend the proceedings for a possibly protracted period to allow the defence to carry out the newly necessary investigations. The only other way to avoid possibly serious prejudice to the appellant was to refuse the amendment proposed. We consider that, in the admitted circumstances, that was the only course that could properly have been followed. In so holding, we bear in mind that, at least in relation to the appellant's own personal involvement in the writing or sending of the letters, there was no discrepancy or variance between the evidence which the Crown had before it at the calling of the diet and the evidence led before the jury. In that regard it is not suggested that the evidence changed in any significant respect. Any discrepancy or variance between the indictment and the evidence appears to have derived from the Crown's failure to frame the original indictment in the full terms warranted by the inference that the appellant's role might have been confined to that of instigator rather that principal actor. In short, apart possibly from the reference to HM Prison Inverness, there was nothing to have prevented the terms of the amendment from appearing in the original indictment.
In defending the trial judge's decision, the Advocate-depute placed considerable emphasis on the words in section 96, "the ends of justice". Their importance is obvious; but the ends of justice are not served by prejudicing the fairness of the trial on indictment of an accused. The appeal succeeds. The conviction is therefore quashed.