R v Oleksandr Romanenko

An indictment may be amended under section 5(1) of the Indictments Act 1915 where the amendment can be made without injustice. The relevant considerations include the circumstances, the stage of the trial and the nature of the amendment. A narrowing amendment based on the same evidence, which does not alter the focus of the defence, will generally cause no prejudice. Where counts are prosecuted as alternatives on the same undifferentiated factual basis, a verdict should not be taken on the alternative count after conviction on the primary count. A resulting multiplicity of convictions is irregular and may require the alternative conviction to be quashed, while leaving the primary conviction safe. Whether both offences may properly be charged depends on the facts and the way the case is advanced.

The appellant was convicted at the Crown Court at Luton of being concerned in the supply of a class A drug and possessing criminal property. The first count had originally alleged conspiracy to supply drugs, but was amended after the prosecution failed to establish evidence connecting the appellant to the wider conspiracy. The second count concerned approximately £117,000 in cash found in his car. The prosecution had opened and conducted the two counts as alternatives, but the jury convicted on both. The appellant challenged the amendment of the indictment and the conviction on the second count. The central issues were whether the amendment caused injustice or prejudice, and whether the jury should have returned a verdict on the possession count after convicting on the amended drug-supply count.

The Court allowed the appeal against conviction on count 2, quashed that conviction and granted the extension of time required for the appeal. It refused permission to appeal in relation to count 1. The conviction on count 1 was not unsafe.

1. Amendment of the indictment. Section 5(1) of the Indictments Act 1915 gives the court a broad power to amend an indictment where necessary to meet the circumstances, subject to the requirement that the amendment must not cause injustice. The enquiry depends on the facts, the stage of the trial and the nature of the amendment. Criminal PD10A also requires the defendant to receive as much notice as possible of a proposed change.
2. The amendment was made at the close of the prosecution case. It narrowed the prosecution case from conspiracy to the substantive offence, relied on the same evidence and did not change the focus of the defence. There was therefore no unfairness or prejudice, and no basis to discharge the jury. The decision in R v Gregory [1972] 1 WLR 991 was distinguishable because the amendment there changed the entire nature of the case and was made after all the evidence had concluded.
3. The court also held that the original conspiracy count included the elements of the substantive drug-supply offence. A properly directed jury could therefore have convicted on that substantive offence even without amendment. Although not every fact concerning the wider conspiracy remained relevant after amendment, Hyde’s guilty plea and conviction were admissible evidence on the amended count.
4. Alternative counts. Where alternative charges arise from the same facts, a verdict should not be taken on the less serious count until finality has been reached on the more serious count. This avoids a multiplicity of convictions, as explained in R v McEvilly [2008] EWCA Crim 1162 and R v Harris [1969] 1 WLR 745. The same procedural principle applied here because the prosecution had advanced counts 1 and 2 as alternatives and had not differentiated between the two sums of money. Taking a verdict on count 2 after the guilty verdict on count 1 was irregular.
5. The court cautioned that there is no absolute rule preventing a drug dealer from being charged with both drug dealing and possession of criminal property. Separate sums of money, different locations or packaging, and a properly differentiated prosecution case may justify both charges. Those circumstances were absent here. The irregularity affected count 2, but did not render count 1 unsafe.

• Court of Appeal (Criminal Division). Allowed the appeal against the conviction on count 2 and quashed that conviction. Refused permission to appeal in relation to count 1.
• Crown Court at Luton. The appellant was convicted on 10 February 2022 and sentenced on 3 January 2023 to five years’ imprisonment on count 1 and two years’ concurrent imprisonment on count 2.