Director of Public Prosecutions v Jones

An information for a summary offence may be amended after the six-month limit where the amendment alleges the same misdoing as the original charge and is in the interests of justice. “Same misdoing” is assessed by asking whether the proposed offence arises from the same, or substantially the same, facts. The court should consider the substance of the alleged conduct rather than technical differences between forms of assault. Relevant interests-of-justice factors include delay, missed opportunities to amend, the defendant’s understanding of the factual case, possible prejudice, and any sentencing difference. Where the defendant has always understood the factual allegation and would meet the amended charge in materially the same way, an amendment may properly be allowed.

The Director of Public Prosecutions appealed by case stated from the decision of lay justices at Newton Aycliffe Magistrates’ Court on 2 September 2019. The justices refused an application to amend two charges of common assault by adding the words “by beating”, thereby alleging batteries. They considered the application out of time under section 127 of the Magistrates’ Courts Act 1980 and contrary to the interests of justice because earlier opportunities to amend had not been taken.

The prosecution case had always concerned allegations that the defendant spat at two prison officers. The defendant denied spitting and had prepared his defence on that basis. The central questions were whether the amended charges alleged the same misdoing as the original charges and whether amendment was in the interests of justice.

1. Appeal allowed. The question stated by the justices was answered in the negative. The amendments were permitted and the proceedings were to continue.
2. Under R v Scunthorpe Justices ex parte McPhee and Gallagher [1998] EWHC 228 (Admin), an information laid within six months may be amended after expiry of the time limit where the new offence alleges the same misdoing as the original offence and amendment is in the interests of justice.
3. “Same misdoing” is not construed narrowly. The question is whether the proposed offence arises from the same, or substantially the same, facts as the original offence. The fact that common assault does not require actual unlawful force did not prevent the proposed battery charges from arising from the same factual allegations. The technical distinction between assault and assault by beating was not decisive.
4. The interests-of-justice assessment required consideration of the whole case. Relevant matters included the delay and missed opportunities to amend, the defendant’s knowledge of the factual case, the way in which the defence had been prepared, any material difference in sentence, and whether the delay was attributable to the prosecution. The justices had focused only on earlier opportunities to amend and had failed to address the same-misdoing issue.
5. The defendant had always known that the case concerned spitting, and his defence statement addressed those allegations directly. The proposed amendments therefore did not introduce a materially different factual case. The circumstances, including the causes of delay and the absence of material forensic prejudice, made it clearly in the interests of justice to allow the amendments.

• High Court (Administrative Court): The appeal by case stated was allowed. The magistrates’ refusal to amend the charges was overturned, the question stated was answered in the negative, and the case was permitted to proceed.
• Newton Aycliffe Magistrates’ Court: On 2 September 2019, the lay justices refused the prosecution’s out-of-time application to amend two common-assault charges by adding “by beating”.