McPhee & Anor, R (on the application of) v Scunthorpe Justices [1998] EWHC 228 (Admin)

EWHC-Admin
McPhee & Anor, R (on the application of) v Scunthorpe Justices
[1998] EWHC 228 (Admin) · 1998-02-24

THE LORD CHIEF JUSTICE : I will ask Mr Justice Dyson to give the first judgment.

MR JUSTICE DYSON : The applicants Kerry McPhee and Mandy Gallagher are jointly charged with an offence of robbery allegedly committed on 22 October 1996. At that time Kerry McPhee was aged 14, and Mandy Gallagher 16. The complainant, a 15-year-old girl, alleged that the applicants assaulted her in Scunthorpe; that they removed her training shoes and then ran from the scene with them. The applicants were arrested the following day. They were both interviewed. Kerry McPhee admitted fighting with the complainant. She said that before the fight the complainant had taken her trainers off. She said that she had got the better of the complainant during the fight, and that once the fight was over she had taken one of her trainers, and her co-accused the other, and that they had thrown them into a bush after trying them on. In her interview Mandy Gallagher made admissions to similar effect.On 23 January 1997 the applicants were charged with robbery. On 20 February the justices determined that the case against the applicants could be tried in the Youth Court and did not require committal to the Crown Court pursuant to section 53(2) of the Children and Young Persons Act 1933.On 4 March a pre-trial review was held at the Scunthorpe Youth Court. The applicants were separately represented. Discussions took place between their representatives and the Crown Prosecution Service as to the possibility of the applicants pleading guilty to alternative lesser charges. The case was adjourned for trial before the Youth Court on 25 April. Thereafter the Crown Prosecution Service agreed to accept guilty pleas from both applicants to the alternative charges of theft and common assault. The Crown Prosecution Service communicated their agreement to the applicants' representatives by letters dated 14 April. All of that was within six months of the date of the commission of the offences.On 25 April the case came before the Scunthorpe Youth Court. The Crown Prosecutor informed the justices that a trial on the robbery charge would not be sought since it had been agreed that the public interest was adequately met by pleas of guilty to the alternative charges of theft and common assault. The justices allowed an application to amend the information to allege theft, whereupon the applicants both entered guilty pleas to theft. When the Crown Prosecutor asked for the charge of common assault to be put, the justices' clerk raised an objection, as a result of which the justices refused to allow the charge of common assault to be put.The objection raised by the clerk and accepted by the justices was based on the following propositions. First, common assault is a summary offence. Secondly, a magistrates' court cannot try a summary offence unless the information containing the offence charged is laid within six months of the time when the offence was committed: see section 127(1) of the Magistrates' Courts Act 1980. Thirdly, by 25 April it was six months and three days since the commission of the offence. Fourthly, therefore, there was no longer the power to amend the information to allege common assault.These applicants now seek judicial review of the refusal by the justices to allow the application to amend the information to substitute for the charge of robbery the charge of common assault, as well as the charge of theft.The Magistrates' Courts Act 1980 so far as material provides as follows:
"123 (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.....127 (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 6 months from the time when the offence was committed, or the matter of complaint arose.(2) Nothing in -- (a) subsection (1) above; ....

shall apply in relation to any indictable offence."

Section 8(1) of the Theft Act 1968 provides that:
"A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force."
Section 39 of the Criminal Justice Act 1988 provides that common assault is a summary only offence.Two authorities were cited to the justices and to these I must now turn. The first was Regina v Newcastle upon Tyne Justices , ex parte John Bryce (Contractors) Ltd [1976] 2 All ER 611. In that case an information was laid against the applicants alleging that they had permitted the use on a road of a motor vehicle which did not comply with the Motor Vehicles (Construction and Use) Regulations 1973, contrary to section 40(5) of the Road Traffic Act 1972. That information was laid just within the six months' limitation period imposed by section 104 of the Magistrates' Courts Act 1952. When the information came before the justices, the six months' period had expired. The prosecutor sought leave to amend the information so that it charged the applicants with using a vehicle which did not comply with the regulations, contrary to section 40(5) of the 1972 Act. The justices allowed the amendment and the applicants were convicted. They applied for an order of certiorari to quash the conviction on the ground that the justices had no power to allow an amendment to an information which had the effect of charging a different offence after the six months' limitation period had expired. May J gave the leading judgment. He referred to section 100 of the Magistrates' Courts Act 1952, which was in identical terms to section 123 of the 1980 Act, and said at page 614A:
"In my view the six months' limitation provision in the 1952 Act is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by the magistrates' courts throughout the country of the summary offences brought before them to be tried. It is in this context that their power to permit the amendment of an information, referred to by Lord Widgery CJ, is to be exercised; it must be exercised judicially; it must be exercised so as to do justice between the parties. But where it can be so exercised, where an information can be amended, even to allege a different offence, so that no injustice is done to the defence, I for my part can see no reason why the justices should not so exercise it even though, as I say, the amendment is allowed after the expiry of the six months' period from the commission of the alleged offence."
Lord Widgery CJ added some words of caution when he said:
"I also agree and would only like to add this. I would not wish prosecuting authorities to think that any licence is available to them to disregard the rules and hope that their troubles may be corrected by amendment at the hearing. On the other hand, in this instance the facts of the two competing offences are really identical, and it seems to me that the justices could hardly have reasonably come to any conclusion other than that the amendment here should be permitted."
The second authority cited to the justices was Simpson v Roberts (The Times, 21.12.84). In the brief report of the judgment of McCullough J, with whom Robert Goff LJ agreed, appear these words:
"In his Lordship's judgment, the remarks of Lord Widgery in Garfield v Maddocks [1974] QB 7, 15 and R v Newcastle upon Tyne Justices, Ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517, 521 indicated the broad principle applicable to questions of this kind: an information which was good enough to enable a defendant to identify the misdoing alleged against him could be amended so long as it continued to allege the same misdoing."
The reasoning of the justices in the light of those authorities is encapsulated in the following extract from the affidavit sworn by Robert Day, Chairman of the Youth Court sitting on 25 April. At paragraph 11 he said:
"We felt that the test to be applied was not that the new matter is based on the same facts, but whether the same misdoing is alleged in the new information and there is no prejudice (as stated in Simpson v Roberts).
We were of the opinion that seeking to alter a Charge of Robbery which is an indictable only offence, punishable with life imprisonment to a charge of common assault which is a summary only offence, punishable with six months' imprisonment is to allege a completely different offence and a completely different misdoing. We did not consider the amended approach prejudiced the applicant. On the basis of a completely different misdoing we refused to allow the amendment."In my judgment, the following principles can be derived from the authorities:(1) The purpose of the six-month time limit imposed by section 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.Our attention has been drawn to a question and answer in the Justice of the Peace issue dated 23 August 1997 under the heading "Practical Points". The question concerned a case in which a defendant had been charged with an offence under section 47 of the Offences Against the Persons Act 1861. The defendant offered to plead guilty to common assault under section 39 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 section 47 offence to a section 39 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 section 47 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. 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 section 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.With those principles in mind, I turn to the present case. In my view the justices applied the wrong test. They expressly declined to consider whether the common assault and theft were based on the same facts, or substantially the same facts, as the robbery. Instead they asked themselves whether the offences were different offences. They decided that they were completely different offences, simply because robbery is a far graver charge than common assault, the maximum penalty for the former being life imprisonment. In my judgment it is clear beyond argument that the new offences of theft and common assault arose out of the same, or substantially the same, facts as the original offence of robbery. Moreover, since the prosecution was prepared to accept pleas to the lesser offences, and the applicants were willing to offer those pleas, the interests of justice plainly required the amendments to be made.For these reasons I would allow these applications and quash the refusal to allow the amendments. I would direct the justices to reconsider the applications in the light of this judgment.

THE LORD CHIEF JUSTICE: I agree.

MR KESSLING: I am very grateful to your Lordships. I would ask for legal aid taxation.

THE LORD CHIEF JUSTICE: Very well. We shall make that order.

Cited in 4 later judgments