PF, R v

Criminal Appeal Act 1968, section 7 restricts the offences for which an accused may be retried after a conviction is quashed. It prevents the replacement of a less serious charge with a more serious one. It does not itself prohibit adding properly joined further counts to the indictment, even though they may arise at the retrial.

The trial judge retains the power to permit amendment. Fairness to the accused is central. An amendment should not be allowed where the prosecution has manipulated the process or abused it. Where genuinely new evidence supports charges which properly form part of a series of offences of the same or similar character, joinder may be permitted.

The applicant had originally been convicted on an indictment containing 15 sexual-offence counts concerning two complainants. On 16 July 2010 the Court of Appeal quashed those convictions because inadmissible evidence had been called and the good-character direction was unsatisfactory. It ordered a retrial under section 7 of the Criminal Appeal Act 1968.

Before the retrial, a third complainant made new allegations. The prosecution obtained joinder of ten new counts, creating a 25-count indictment. The applicant was convicted on 19 counts. He sought leave to appeal, principally contending that the additional counts could not lawfully be joined at a retrial. He also challenged the exclusion of school records concerning one complainant and contended that the convictions were unsafe.

1. Application for leave to appeal refused. Section 7 of the Criminal Appeal Act 1968 limits the offences for which an accused may be retried after the original conviction has been quashed. It prevents the substitution of a more serious charge for a less serious charge. It is silent about adding other counts or defendants to the indictment.
2. The trial judge's power to amend an indictment survives a retrial order. The court applied the approach in R v Booker [2011] 1 Cr App R 26: a restrictive approach is not required, but fairness is central. A judge should refuse an amendment if it involves prosecutorial manipulation or abuse of process.
3. The further counts were properly joined. The new complainant's evidence was unavailable at the original trial, so those allegations could not have appeared on the original indictment. The offences formed part of a series of the same or similar character for rule 14.2(3) of the Criminal Procedure Rules 2011. The addition neither altered nor aggravated the original 15 charges.
4. The judge also made a proper discretionary decision under section 100(1) of the Criminal Justice Act 2003. The school records recorded relatively minor misconduct and did not constitute important explanatory evidence or evidence of substantial probative value on a matter of substantial importance. No relevant factor was overlooked and there was no basis for appellate intervention.
5. The unsafe-conviction ground added nothing to the first two grounds and failed.

• Court of Appeal (Criminal Division): This court refused leave to appeal against the convictions: [2012] EWCA Crim 720.
• Crown Court: Following joinder of ten further counts to the retrial indictment, the applicant was convicted on 19 counts in August 2011.
• Court of Appeal (Criminal Division): On 16 July 2010, the court quashed the original convictions and ordered a retrial under section 7 of the Criminal Appeal Act 1968.
• Crown Court: The applicant had originally been convicted on 12 counts from a 15-count indictment in June 2009.