Thompson, R v

Section 5 of the Indictments Act 1915 gives the trial court a broad power to amend an indictment, including by adding counts based on matters arising after committal or the plea and case-management hearing. The statutory restrictions governing the preference of a bill of indictment do not limit that subsequent power of amendment.

The controlling safeguard is whether the amendment would cause injustice. Such amendments will rarely be appropriate and should ordinarily be addressed in case management. Where the defendant has long had the relevant material, has adequate opportunity to meet the new counts, and suffers no unfairness, an amendment may properly be allowed.

The appellant was tried at Hull Crown Court on offences under section 92 of the Trade Marks Act 1994. Counts 1 to 10 concerned toys seized in 2007 and 2008. During the trial, the Recorder permitted the indictment to be amended to add counts 11 and 12 concerning counterfeit toys seized in July 2009, after the committal proceedings and the plea and case-management hearing.

The jury acquitted the appellant on counts 1 to 10 but convicted him on counts 11 and 12. The single judge rejected proposed grounds concerning disclosure and inconsistent verdicts, but granted leave on the amendment issue. The central question was whether an indictment could be amended to add counts concerning matters that had arisen after committal.

1. Appeal dismissed. The Recorder had power under section 5 of the Indictments Act 1915 to amend the indictment by adding counts based on the July 2009 seizure, although those matters post-dated committal and the plea and case-management hearing.

2. The court followed Osieh [1996] 2 Cr App R 145. Its conclusion was part of that decision’s ratio, not obiter. Section 5 confers a broad discretion to cure a defective indictment. The restrictions in the Administration of Justice (Miscellaneous Provisions) Act 1933 concern the signing or preference of a bill of indictment. They do not restrict a later amendment to an indictment.

3. The safeguard at the amendment stage is the judge’s duty to refuse an amendment that would cause injustice. The court accepted that, as observed in R v Mark Foster [2007] EWCA Crim 2869, use of the power in this way will be rare. The issue should normally be identified at the plea and case-management hearing.

4. There was no conceivable prejudice to this appellant. The material concerning the July 2009 seizure had been served months before trial. The defence had adequate notice and the amendment avoided the unfairness of treating the same allegations merely as bad-character evidence. The failure was one of case management and affected the efficient administration of justice, not the fairness of the trial. The convictions on counts 11 and 12 were safe.

• Court of Appeal (Criminal Division): Appeal dismissed. The court upheld the Recorder’s amendment of the indictment and held that the convictions were safe.
• Crown Court at Hull: Mr Recorder Mansell allowed counts 11 and 12 to be added to the indictment. The jury acquitted the appellant on counts 1 to 10 and convicted him on counts 11 and 12.