Booker v R

On a criminal retrial, section 7(2) of the Criminal Appeal Act 1968 does not impliedly remove the trial judge’s power under section 5(1) of the Indictments Act 1915 to amend an indictment by adding a co-conspirator. Co-conspirators should normally be tried together, subject to the statutory requirement that amendment must not cause injustice.

Fairness to a defendant being retried is central. However, a disadvantage caused by subsequently available evidence, or by better presentation of the prosecution case, does not of itself make joinder unlawful. The court must refuse amendment where the prosecution has manipulated the process so as to make the retrial unfair. That question is assessed by reference to the information available when amendment is sought.

Booker v R concerned an appeal against conviction for conspiracy to supply cocaine. The appellant had been convicted at a first trial, but that conviction was quashed because unfairly introduced prosecution evidence had been used. A retrial was ordered.

Before the retrial at Reading Crown Court, the indictment was amended to add Breskal, an alleged co-conspirator who had not been a defendant at the first trial. Breskal later admitted delivering cannabis to the premises. His evidence materially undermined the appellant’s account that the boxes carried from those premises contained clothing.

The appellant contended that joining Breskal made the retrial unfair, particularly because of the unexplained delay in charging him. The central issue was whether the amendment was unlawful or an abuse of process because the appellant was thereby placed in a worse position than at the original trial.

1. Appeal dismissed. The judge had been entitled to permit the amendment adding Breskal as a defendant, and the conviction was safe.

2. Section 7(2) of the Criminal Appeal Act 1968 regulates the offences for which a person may be retried. It does not prohibit the addition of a defendant to an indictment, nor does it impliedly restrict the trial judge’s amendment power under section 5(1) of the Indictments Act 1915. The approach in R v Hemmings & Others [2000] 1 Cr App R 360 supported that conclusion.

3. Absent the retrial issue, joinder was plainly permissible. Alleged co-conspirators should normally be tried together. The fact that a defendant is placed at a disadvantage at a retrial does not establish injustice merely because further evidence has emerged or the prosecution case is better prepared.

4. Nevertheless, fairness to the defendant is central when amendment is sought at a retrial. The court accepted that an application to add a defendant could amount to an abuse of process if the prosecution manipulated the process to prejudice the defendant or to render the retrial unfair. The relevant assessment is made on the information available when the amendment is granted.

5. The delay in charging Breskal was unattractive and unexplained, but it did not establish manipulation or abuse. His damaging change of position arose only during the trial, and no application was made to discharge the jury after his evidence. The judge therefore properly exercised her discretion, and the strong prosecution case left no doubt as to the safety of the verdict.

• Court of Appeal (Criminal Division) The appeal against the retrial conviction was dismissed: [2011] EWCA Crim 7.

• Reading Crown Court On retrial, the appellant was convicted on 10 August 2009 of conspiracy to supply a class A controlled drug and sentenced to five years’ imprisonment.

• Court of Appeal (Criminal Division) The first-trial conviction was quashed on 19 September 2008 because unfairly introduced prosecution evidence had been used, and a retrial was ordered.