Wielgus, R v

Under Indictments Act 1915, section 5(1), a trial indictment may be amended where a count is defective because it does not accord with the evidence, unless the amendment would cause injustice.

A judge may raise whether the charge is appropriate, but the prosecuting authority retains the final decision whether to prosecute and on what charge. The decisive question is whether the amendment impairs the defendant’s practical ability to answer the allegation. A late substitution of assault occasioning actual bodily harm for assault by beating is permissible where the defence would be conducted in the same way and the evidence supports the substituted count.

R v Wielgus concerned an application for leave to appeal against a conviction for assault occasioning actual bodily harm at Isleworth Crown Court.

The applicant had initially been indicted for assault by beating upon his girlfriend. After hearing her evidence about a sustained alleged attack, the trial judge invited consideration of an amendment. The prosecution then applied to substitute a count of assault occasioning actual bodily harm, and the judge granted that application. The applicant was convicted. He had been acquitted of counts concerning the complainant’s sisters, and the jury had not reached a verdict on a separate count involving a gun.

The central issue was whether the amendment was authorised and whether it caused injustice to the applicant.

1. The application for leave to appeal against conviction was refused. The court held that the amendment from assault by beating to assault occasioning actual bodily harm caused no injustice.
2. Section 5(1) of the Indictments Act 1915 empowered the court to amend a defective indictment unless, having regard to the merits, the amendment could not be made without injustice. A count may be defective where it does not accord with the evidence. On the accepted evidence of an assault causing cuts, scratches and bruises, the original count could be treated as defective and the judge had power to permit substitution of the more serious count.
3. The Crown Prosecution Service Charging Standards did not make the substituted charge inappropriate. Although the injuries were not serious, the alleged manner and extent of the attack could make the incident substantially more serious than the injuries alone suggested and could justify a sentence exceeding six months. The court nevertheless observed that it was questionable whether an error in applying the Charging Standards could itself found an appeal after an unimpeachable ruling that the defendant had a case to answer.
4. A judge may express a view that the charge should be reconsidered. The judge must not, however, assume the prosecutor’s function: the prosecuting authority retains the final decision whether to prosecute and what charge to pursue. Here, the prosecution itself applied for the amendment after the judge raised the issue.
5. The timing of the amendment did not prejudice the defence. The applicant’s case remained that he had not attacked the complainant and, insofar as force was used, that it was self-defence. That case required no different preparation or presentation after the amendment. The alleged attacks on the complainant’s sisters were materially different, so the different charging treatment did not establish unfairness. The other verdicts did not show that the jury rejected the complainant’s account of the assault upon her.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 1047, the court refused the application for leave to appeal against conviction.
• Isleworth Crown Court: The applicant was convicted by a jury of assault occasioning actual bodily harm after the indictment was amended from assault by beating. He later received a community sentence from another judge.