Indictments. Amend indictments Flashcards
Statutory Provision
The power to amend an indictment, once it has been served, lies in the Indictments Act 1915, s. 5(1).
Indictments Act 1915, s. 5
(1) Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.
Extent of the Power to Amend
The power to amend may be exercised both:
(a) in respect of formal defects in the wording of a count, for example when the statement of offence fails to specify the statute contravened or when the particulars do not disclose an essential element of the offence, and
(b) in respect of substantial defects such as divergences between the allegations in the count and the evidence foreshadowed in the material served under the regulations for the service of the prosecution case after the accused has been sent for trial or called at trial.
The argument for the appellants appeared to involve the proposition that an indictment, in order to be defective, must be one which in law did not charge any offence at all and therefore was bad on the face of it. We do not take that view. In our opinion, any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person.
It followed that the trial judge in Pople had been entitled to allow an amendment at the close of the prosecution case to make the property allegedly obtained by deception from a building society a cheque rather than the sum of money. Furthermore, there was no injustice to D because the matter in which the indictment was defective was ‘the mere description of the thing obtained’, while ‘in substance, the charge was the same’.
Amendment by Insertion of a New Count
As well as enabling amendments to be made to existing counts, s. 5(1) of the Indictments Act 1915 permits the insertion of an entirely new count into an indictment, whether in addition to or in substitution for the original counts
‘there is no rule of law which precludes amendment of an indictment after arraignment, either by addition of a new count or otherwise’.
The words ‘after arraignment’ appear in the sentence quoted because the main point at issue in that case was whether the amendment was made too late, but obviously the addition of a count before arraignment is even less open to objection than a subsequent addition.
Where the addition is made after arraignment, it will be necessary to put the new counts to the accused to enable the accused to plead to them.
Amendment can be made even after the close of the prosecution case.
The amendment to an indictment can be so extensive that the question arises whether it amounts to the substitution of a fresh indictment.
This was the issue in Fyffe where the Crown amended an 11-count indictment so that it contained 27 counts. It was submitted on appeal that the 27-count indictment was a fresh indictment and therefore the judge should have gone through the procedural steps of staying the 11-count indictment and granting the prosecution leave to prefer the 27-count indictment out of time, whereupon the defendants should have been arraigned once more.
The appeal was dismissed since, for all material purposes, the 27 counts reproduced what had appeared in the 11 counts.
No new allegations had been added; the amendments were of form rather than substance and it was not necessary to go through the process of re-arraignment.
Evidential Basis for the New Count
A further question arises as to whether it is necessary for the amendment to be founded on the material disclosed under the regulations for the service of the prosecution case after the accused has been sent for trial.
The power to amend under s. 5 was held not to be limited by the evidence served at committal, and the question to be assessed before permission to amend is granted is whether or not the accused will be unfairly prejudiced by the amendment.
The fact that an amendment raises for the first time something not foreshadowed in the documents may be a ground for not permitting the amendment, or permitting it only together with an adjournment
Timing of Amendment
The Indictments Act 1915, s. 5(1), makes clear that an indictment may be amended at any stage of a trial, whether before or after arraignment. This was demonstrated in the following cases:
(a) in Johal where the insertion of the new counts occurred after arraignment but before the empanelling of the jury;
(b) in Pople where the amendment took the form of an alteration in the description of the property obtained by deception and was granted after the close of the prosecution case;
(c) in Collison where the amendment was made after the jury had been out considering their verdict for over three hours — on appeal, counsel for C accepted ‘that the words in section 5(1) of the Indictments Act 1915 “at any stage of a trial” do permit amendment even after the jury have gone into retirement if the circumstances otherwise justify it and no injustice is caused to the defendant’.
