Director of Public Prosecutions v Jones

An information for a summary offence may be amended after expiry of the six-month time limit where it was laid in time. This remains permissible even if the amendment alleges a different offence, provided that the new offence concerns the same misdoing and the amendment is in the interests of justice. “Same misdoing” is construed broadly. The relevant question is whether the new offence arises from the same, or substantially the same, facts. The court must consider the substance of the allegation, the defendant’s understanding of the case, delay, preparation, and any material difference in sentence. A technical difference between common assault and assault by beating does not prevent amendment where the factual allegation has always been clear.

The Director of Public Prosecutions appealed by way of case stated against the decision of Newton Aycliffe Magistrates’ Court on 2 September 2019. The magistrates refused an application to amend two charges under section 39 of the Criminal Justice Act 1988, alleging common assault, by adding the words “by beating”. The proposed amendments related to allegations that the respondent had spat at two prison officers.

The application was made more than six months after the alleged offences. The magistrates considered that there had been earlier opportunities to amend and refused the application in the interests of justice. The central issue was whether, in the circumstances, the refusal was correct.

1. Appeal allowed. The court answered the stated question in the negative and held that the amendments should be allowed so that the proceedings could continue.
2. Under section 127 of the Magistrates’ Court Act 1980, an information laid within the six-month period may be amended after that period. An amendment may allege a different offence if the new offence alleges the same misdoing as the original and the amendment is in the interests of justice. The phrase “same misdoing” is not to be construed narrowly. It refers to the same, or substantially the same, facts.
3. The original charges were formally framed as common assault, but the factual case had always been that the respondent spat at the officers and that the spittle landed on them. The respondent’s defence statement addressed those allegations directly. It was therefore too technical to focus solely on the distinction between assault, which does not require unlawful force to be inflicted, and assault by battery.
4. The magistrates failed to decide whether the proposed offences arose from the same misdoing. They concentrated instead on the fact that earlier opportunities to amend had not been used. The relevant considerations included the respondent’s knowledge of the factual case, the effect on preparation, the delay, the reasons for the delay, and any difference in sentencing consequences.
5. Viewed as a whole, this was always a case about spitting. The respondent knew the allegation he had to meet, and the delay was not attributable solely to prosecutorial fault. The serious allegations should be resolved at trial. The court also permitted amendment of the case stated under CPR 52 EPD.9, identified as paragraph 3.9 of Practice Direction 52E.

• High Court (Queen’s Bench Division): The appeal by way of case stated was allowed. The magistrates’ refusal to amend the charges was held wrong, and the amendments were permitted.
• Newton Aycliffe Magistrates’ Court: On 2 September 2019 the magistrates refused the prosecution’s application to add “by beating” to two common-assault charges and dismissed the charges after the prosecution offered no evidence.