Barker & Ors, R v

A late amendment to an indictment requires scrutiny proportionate to its timing and substance. An amendment made at the close of the prosecution case to defeat a meritorious submission of no case to answer is unlikely to be permitted where it changes the defence required. A subsequent retrial may then amount to an abuse of process if due process has been objectively compromised.

That assessment is fact-specific. An amendment which changes only the legal description of an unchanged case is not necessarily substantive. A renewed application to stay proceedings before a different Crown Court judge requires a material change of circumstances. The fair-trial and justice-and-propriety categories of abuse of process may overlap.

Five defendants faced trial on three counts of conspiracy to commit fraud concerning property sales by Severn Trent Water at alleged undervalues. At the first trial, before HHJ Henderson, the prosecution's retrospective valuation evidence was excluded and the jury was discharged. The judge allowed an amendment replacing one alleged global conspiracy with three alleged conspiracies, while holding that the discharge was independent of that amendment.

Before the proposed retrial, HHJ Carr rejected applications to stay the proceedings as an abuse of process and declined to sever the counts. The defendants brought a joint interlocutory appeal under the Criminal Justice Act 1987. The central issue was whether the late amendment, jury discharge, investigation and disclosure deficiencies made the retrial an abuse of process, and whether separate trials were required.

1. The appeal was dismissed and permission to appeal the refusal to sever was refused. HHJ Carr could entertain a renewed abuse-of-process application only to the extent that circumstances had changed since HHJ Henderson's decision. Without such a change, the application would improperly amount to an appeal from one circuit judge to another. The subsequent disclosure provided a sufficient basis to consider the renewed application.

2. A stay for abuse of process may arise because a fair trial is impossible or because trying the accused would offend the court's sense of justice and propriety. The categories are not watertight and may overlap. The court firmly rejected any contention that a fair trial was impossible. The exclusion of unsafe valuation evidence did not make a fair trial impossible merely because the defence would need to challenge other admissible evidence.

3. R v Piggott and Litwin [1999] 2 Cr App R 320 established no new general rule. Late amendments of substance, particularly those made after the prosecution case to defeat a meritorious no-case submission, require close scrutiny. Such an amendment may be substantive where a retrial would require a materially different defence. Whether a retrial then abuses the process is fact-specific.

4. Here, the amendment from one conspiracy to three did not alter the factual case or the defence to be met. It was not made or allowed to defeat the no-case submissions. HHJ Henderson had made clear that he would have discharged the jury because of the exclusion of evidence and disclosure difficulties even without the amendment. The amendment was therefore not substantive on these facts, and the prosecution deficiencies did not make the retrial an abuse of process.

5. The court also endorsed the need for a judgment to explain why the parties succeeded or failed and to permit appellate review without mechanically repeating all material. Finally, the counts were validly joined. There was no prejudice or embarrassment in the defence, no special feature requiring severance, and any issue of cross-admissibility could be addressed at trial by directions to the jury.

• Court of Appeal (Criminal Division): The joint interlocutory appeal was dismissed and permission to challenge the refusal of severance was refused: [2017] EWCA Crim 437.
• Crown Court at Birmingham: HHJ Carr, at a preparatory hearing, dismissed the renewed application to stay the proceedings as an abuse of process and refused severance on 3 February 2017.
• Crown Court at Birmingham: At the first trial, HHJ Henderson excluded retrospective valuation evidence, allowed an amendment to the indictment, and discharged the jury. He dismissed the abuse-of-process applications.