Director of Public Prosecutions, R (on the application of) v Everest

When a summary information was laid within the statutory time limit, the justices retained a discretion to amend it after that period, including at the close of the prosecution case, where the amended offence arose from the same or substantially the same facts. The governing consideration was the interests of justice. Relevant matters included whether the amendment introduced a different offence or statutory defence, shifted the burden of proof, increased the potential penalty, required a rehearing or adjournment, resulted from prosecutorial delay or incompetence, and prejudiced an unrepresented defendant. Where those matters made the amendment unfair, refusal was a proper exercise of discretion. The High Court would not intervene where the decision was legally correct and fell within the range of reasonable discretionary outcomes.

The Director of Public Prosecutions appealed by way of case stated from the decision of the West Kent Justices at Sevenoaks Magistrates’ Court, which dismissed an information against the defendant. The original charge alleged lighting a fire on or over a highway contrary to section 161(2)(a) of the Highways Act 1980. After the prosecution had closed its case, the prosecution sought to amend the information to allege lighting a fire on land outside the highway, contrary to section 161A(1)(a) of that Act.

The justices refused the amendment. They considered the prosecutorial failure to identify the correct offence, the new statutory defence and burden of proof, the increased maximum penalty, the likely need to recall witnesses, and the defendant’s lack of representation. The central issue was whether that refusal involved legal error.

1. The appeal was dismissed. The question stated for the opinion of the High Court was answered affirmatively: the justices were correct, in the sense that no legal error affected their refusal to amend the information.
2. The justices applied the correct legal test. They had a discretion to permit amendment after expiry of the six-month period in section 127 of the Magistrates’ Courts Act 1980, even at the close of the prosecution case. The discretion had to be exercised by reference to the interests of justice. The proposed offence arose from the same alleged misdoing, but that did not determine the outcome.
3. All the matters relied on by the justices were legally relevant. The prosecution had failed from the outset to charge the right offence and had missed earlier opportunities to correct the information. The proposed amendment was more than a technical correction: it introduced a different offence, a statutory defence under section 161A(2) of the Highways Act 1980, and a burden on the defendant to prove that defence on the balance of probabilities.
4. The justices were entitled to conclude that the amendment would unfairly alter the basis on which the defendant had prepared and conducted his case. It would expose him to a substantially higher maximum fine, and might require a rehearing of the prosecution evidence so that further cross-examination could take place on matters relevant to the statutory defence. The High Court rejected the submission that no rehearing was necessary. That assessment was reasonably open to the justices.
5. The defendant’s lack of representation was also relevant, because it increased the prejudice caused by changing the charge immediately before he was to give evidence. The conclusion that amendment was contrary to the interests of justice was well within the limits of a reasonable exercise of discretion. There was therefore no basis for intervention.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The refusal by the West Kent Justices to amend the information was upheld.