Gleeson, R. v

A late amendment to an indictment is permissible where it does not alter the prosecution case as opened, the evidence required, or the jury’s task, and where any resulting prejudice to the defence can fairly be cured. The decisive question is whether the trial as a whole remains fair and the conviction safe. A fresh trial is unnecessary merely because the amendment follows a successful legal challenge to the original count. Defence advocates should identify determinative legal issues at the plea and directions hearing and in the defence statement. Deliberately withholding such an issue for tactical advantage is inconsistent with modern criminal procedure and professional duty.

The appellant was convicted at the Crown Court at Southwark of statutory conspiracy to obtain property by deception. The prosecution alleged an advance-fee fraud in which the conspirators sought £35,000 by falsely promising that $75 million would be transferred into a bank account.

At the close of the prosecution case, the judge directed an acquittal on the original common-law conspiracy count after a submission based on DPP v Nock [1978] AC 729. He nevertheless permitted the Crown to add a statutory conspiracy count and declined to discharge the jury. The appellant appealed against conviction, alleging that the amendment and continuation of the trial were unfair.

1. Appeal dismissed. The conviction was safe. The judge was entitled to permit the late addition of the statutory conspiracy count and to continue the trial before the same jury.

2. The correct inquiry was whether the amendment caused unfairness in the trial as a whole. The judge properly considered whether the Crown would have opened or conducted its case differently had the statutory count been included from the outset, and whether the defence had suffered prejudice. The answer to the first two questions was no: the alleged dishonest agreement, the evidence, and the jury’s task remained the same.

3. R v O'Connor [1997] Crim LR 516 was distinguishable. In that case the proposed amendment would have required the defence to meet a factual case which it had not previously had to meet. No comparable change arose here.

4. The asserted prejudice could fairly be cured. The judge offered to have prosecution witnesses called or recalled for cross-examination, and could explain to the jury that any repetition resulted from the Crown’s original choice of charge. Counsel did not seek recall. There was also plainly evidence capable of supporting the amended count, so the order in which the judge addressed the submissions could not have affected the result.

5. The court added that a defendant should not be prejudiced by representatives’ errors where a fair trial has become impossible. Equally, a prosecutorial error should not frustrate the prosecution where it can be corrected without irremediable unfairness. Deliberately withholding a determinative point of law for tactical advantage was no longer acceptable and was contrary to the disclosure requirement in the Criminal Procedure and Investigations Act 1996, section 5(6), and to counsel’s duty to the court.

• Court of Appeal (Criminal Division) — by judgment dated 16 October 2003, [2003] EWCA Crim 3357, dismissed the appellant’s appeal against conviction.
• Crown Court at Southwark — on 19 December 2002, the appellant was convicted of statutory conspiracy to obtain property by deception after the indictment was amended during the trial.