Shaw v Director of Public Prosecutions

After the six-month limit in Magistrates' Courts Act 1980 section 127 has expired, an information may still be amended to allege a different offence where it arises from the same misdoing and the amendment is in the interests of justice. The power does not justify an amendment which exposes the defendant to a significantly more serious penalty, particularly imprisonment, without adequate protection of the defence. Where such an amendment is made, an absent defendant should ordinarily be given a further opportunity to attend. The concept of being misled in section 123(2) is broad enough to cover the material change from liability only to a fine to liability for an imprisonable offence.

The claimant appealed by case stated against his conviction by South East Essex Magistrates' Court. He had originally been summoned for having custody of a dog in breach of a disqualification order said to have been made under the Dangerous Dogs Act 1989. During the trial, after the six-month period in section 127 of the Magistrates' Courts Act 1980 had expired and after defence counsel had withdrawn, the information was amended to allege the correct statutory basis under the Protection of Animals Act 1911 and the Protection of Animals (Amendment) Act 1954.

The amended offence carried a maximum sentence of three months' imprisonment, whereas the original offence carried only a level 5 fine. The questions were whether the Justices had power to amend, whether the amendment was in the interests of justice, and whether they could continue with the trial in the claimant's absence.

1. Power to amend. The Justices had power under section 123 of the Magistrates' Courts Act 1980 to amend an information after the section 127 time limit where the amended offence alleged the same misdoing as the original offence and the amendment was in the interests of justice. The relevant misdoing was custody of a dog in breach of a lifetime disqualification. The difference between the statutory sources of the disqualification did not make it different misdoing.
2. Interests of justice. The power was exercised improperly. The amendment introduced an offence carrying a maximum of three months' imprisonment, replacing an offence punishable only by a fine. A significantly more serious penalty was a very important consideration and, in the circumstances, weighed against allowing the amendment.
3. Absence and adjournment. Had the amendment been upheld, the trial should have been adjourned to give the claimant a further opportunity to attend. He had been tried unrepresented and in his absence for an imprisonable offence. The word “misled” in section 123(2) required a wide meaning and supported that conclusion.
4. Disposition. The appeal was allowed, the second and third questions were answered in the negative, and the conviction was quashed. The first question was answered in the affirmative. A Legal Aid taxation order was made.

The judgment describes an appeal by case stated from the conviction by South East Essex Magistrates' Court. The Magistrates had refused an application under section 142 of the Magistrates' Courts Act 1980 to reopen the case. The Divisional Court allowed the appeal and quashed the conviction.