Murray & Ors, R v

An indictment may be amended under section 5(1) of the Indictments Act 1915 where it is defective. The expression is construed liberally. An amendment which reflects the evidence and does not materially alter the case to answer will not ordinarily require discharge of the jury or re-arraignment.

The content of a warning about an unreliable accomplice witness depends on the case. A full corroboration direction is unnecessary where the judge has adequately identified the risks bearing on credibility and directed the jury to assess the witness against other evidence.

An indeterminate sentence requires an individual, reasoned assessment of significant future risk. The gravity of the current offences cannot alone establish dangerousness. The court must also consider whether a less severe sentence is sufficient to manage any risk.

The appellants were involved in conspiracies concerning a planned burglary and a series of violent, targeted dwelling-house robberies. At the Crown Court at Worcester, Hawthorne was convicted of conspiracy to burgle. Jason Murray and Clarke were convicted of, or pleaded guilty to, conspiracy to rob. Jason Murray and Clarke received sentences of imprisonment for public protection.

Hawthorne renewed his application for leave to appeal against conviction. He challenged an amendment to the indictment, the failure to discharge the jury or re-arraign him, and the judge's directions concerning the evidence of Ms Tyrell. Jason Murray appealed against sentence. Clarke sought an extension of time and leave to appeal against sentence. The central sentencing issue was whether each appellant had properly been found dangerous so as to justify an indeterminate sentence.

1. Hawthorne's renewed application for leave to appeal against conviction was dismissed. The judge was entitled to treat the indictment as defective and permit the addition of the words “and others”. Section 5(1) of the Indictments Act 1915 is to be construed liberally. The amendment reflected the evidence, did not change the case which Hawthorne had to answer, and caused no material prejudice. It neither required the jury's discharge nor rendered his conviction unsafe through the absence of re-arraignment.

2. The directions concerning Ms Tyrell were sufficient. A trial judge must provide such assistance as the circumstances require when a witness may be unreliable. That may include a caution and, in an appropriate case, a direction on the desirability of independent support. It does not invariably require a full accomplice direction. Here the judge identified her role in the prosecution case, the matters affecting her credibility, and the other evidence which the jury should consider. There was no arguable basis for saying that a corroboration warning was required.

3. Jason Murray's sentence appeal was allowed. An indeterminate sentence is a grave disposal. The judge must first assess whether the offender poses a significant risk of serious harm through further specified offending. If so, the judge must consider whether an extended sentence would sufficiently manage that risk and give reasons by reference to the individual's circumstances. The seriousness and type of the current offending cannot automatically establish dangerousness.

4. The judge gave no adequate individual explanation for finding Jason Murray dangerous. His previous record did not include significant violence, and the pre-sentence report considered that a lengthy determinate sentence would reduce risk. The sentence of imprisonment for public protection was quashed and replaced with 18 years' imprisonment. Time on remand was to count under section 240 of the Criminal Justice Act 2003.

5. Clarke was granted an extension of time and leave to appeal, and his sentence appeal was allowed. The evidence did not establish that he had been present at a robbery or used violence. His only prior violent conviction was a robbery committed when he was 16. The sentencing judge appeared to have assessed the conspirators collectively rather than considering Clarke's distinct role. His imprisonment for public protection was quashed and replaced with 17 years' imprisonment, with 515 days on remand to count under section 240.

• Court of Appeal (Criminal Division)—allowed the sentence appeals of Jason Murray and Clarke, substituting determinate sentences; dismissed Hawthorne's renewed application for leave to appeal against conviction: [2012] EWCA Crim 2823.

• Crown Court at Worcester—Hawthorne was convicted of conspiracy to burgle. Jason Murray and other defendants were convicted of, or pleaded guilty to, conspiracy to rob. Jason Murray and Clarke received sentences of imprisonment for public protection.