Leeks, R. v

Under section 5(1) of the Indictments Act 1915, an indictment may be amended only when the court itself exercises its discretion and positively makes an order for amendment. Parties’ shared expectation that an amendment will be made, and a defendant’s subsequent guilty plea to the proposed count, cannot cure the absence of that order. A conviction and sentence founded on a count added without an order are a nullity. This differs from a failure to endorse an amendment under section 5(2). Endorsement is an administrative act, and its omission does not invalidate an amendment that the court has properly authorised.

The applicant was originally charged on a valid indictment with causing death by careless driving and refusing to provide a specimen of breath. Before trial, the prosecution proposed an alternative count of causing death by careless driving when unfit through drink. Although the parties and judges proceeded on the assumption that the indictment would be amended, neither judge made an order under section 5(1) of the Indictments Act 1915.

At Chelmsford Crown Court, the applicant pleaded guilty to the proposed count and received two years’ imprisonment and a seven-year driving disqualification. The sentencing judge later discovered that no formal amendment or endorsed order existed. The Registrar referred the application for leave to appeal to the Full Court. The central issue was whether the plea, conviction and sentence on the added count were valid.

1. Leave to appeal was granted; the conviction and sentence were quashed as nullities. The original indictment had been validly signed and remained in force, but the added count had no legal existence.

2. Section 5(1) of the Indictments Act 1915 required the court, not the parties, to exercise discretion and make an order authorising the amendment. Neither Judge Clegg nor Judge Ball made such an order. The court rejected the Crown’s submission that an order could be inferred from the parties’ expectation, the argument conducted on the proposed count, or the applicant’s guilty plea.

3. The court distinguished the administrative requirement in section 5(2). Following R v Ismail (1991) 92 Cr App R 92, an omitted endorsement would not itself invalidate an amendment which had been properly ordered. Here, however, the essential judicial act under section 5(1) had never occurred.

4. Although factually distinct from R v Clarke and McDaid [2008] UKHL 8, the same principle governed. Formal requirements governing the state’s power to try a person for serious crime could not be treated as a dispensable technicality. The plea, conviction and sentence on the unauthorised count were therefore founded on a nullity.

5. The court ordered a retrial, gave leave for a fresh indictment to be preferred, and required arraignment within two months. Venue was to be determined by a presiding judge of the South Eastern Circuit. The applicant was granted unconditional bail.

• Court of Appeal (Criminal Division): Granted leave to appeal, quashed the conviction and sentence, and ordered a retrial on a fresh indictment.

• Chelmsford Crown Court: The applicant pleaded guilty to the purported added count of causing death by careless driving when unfit through drink. He was sentenced to two years’ imprisonment and disqualified from driving for seven years.

• Basildon Crown Court: The prosecution proposed adding the alternative count, but no order amending the valid original indictment was made.