Director of Public Prosecutions v Hammerton

A prosecutor has no presumptive entitlement to substitute a lesser charge after proceedings have begun. The magistrates’ court retains a discretion to refuse substitution. The correct question is whether the proposed charge is proper and appropriate in the circumstances, applying the overriding objective under the Criminal Procedure Rules.

Relevant considerations include the factual appropriateness of the new charge, the promptness of the application, any unexplained last-minute conduct, the proper administration of justice, and consistency between co-accused. Bad faith need not be established in every case before substitution may be refused.

The respondent was initially charged with attempted theft after allegedly smashing a car window and attempting to steal a laptop. On the date fixed for committal, the prosecution sought to substitute a summary-only charge of interfering with a motor vehicle under section 9 of the Criminal Attempts Act 1981.

The magistrates refused the application. They found that the original charge was appropriate, that the prosecution had offered no new facts or evidence, that the application was made at the last minute, and that its apparent purpose was to prevent a jury trial. The prosecution appealed by way of case stated, asking whether the magistrates were entitled to refuse the substitution.

1. Appeal dismissed. The magistrates were entitled to refuse permission to substitute the lesser charge. The case-stated question was answered in the affirmative.
2. The authorities relied upon by the prosecution established that a prosecutor may often choose a lesser charge, and that the loss of a prospective jury-trial entitlement does not itself establish unfairness. Those principles did not give the prosecution an unfettered right to substitute charges at any stage.
3. In the light of the Criminal Procedure Rules and their overriding objective, the proper approach was whether the proposed substitution was proper and appropriate. The court doubted that bad faith had to be proved in every case before refusal was permissible.
4. The magistrates were entitled to consider that the original attempted-theft charge was appropriate on the facts, whereas the proposed motor-vehicle-interference charge was not. The prosecution had provided no proper explanation for the late application, despite having had ample time to assess the case.
5. The wider administration of justice was relevant. Other alleged participants, said to be lesser figures, had continued to face the more serious attempted-theft charge, while the respondent was alleged to be the principal offender. Allowing the substitution in those circumstances could produce a serious and unjustified divergence between co-accused.
6. There was no presumption that a lesser charge could be substituted virtually as of right. Applications should be made promptly, should be factually proper and appropriate, and should take account of the overriding objective and the wider circumstances of the proceedings.

High Court (Administrative Court): On an appeal by way of case stated, the court dismissed the prosecution appeal and answered the magistrates’ question in the affirmative. The magistrates’ refusal to permit substitution was upheld.