CO/7781/2006 
Neutral Citation Number: [2007] EWHC 207 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 25th January 2007
 
B E F O R E:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE DAVID CLARKE 

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SHAW
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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MR G SEMPLE (instructed by Paul Robinsons) appeared on behalf of the CLAIMANT
MR C HEXT (instructed by CPS Essex) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	MR JUSTICE DAVID CLARKE:  This is a defendant's appeal by case stated against his conviction by the South East Essex Magistrates' Court at Southend of an offence of having custody of a dog in contravention of a Disqualification Order imposed under section 3 of the Protection of Animals Act 1911 and section 1 of the Protection of Animals (Amendment) Act 1954.  For that offence, the appellant was subsequently sentenced to a Community Order with an unpaid work requirement.  
2.	He was convicted in his absence, though he was represented by counsel at the start of the trial.  At a preliminary hearing he had been bailed to attend his trial and there was no suggestion when he was subsequently dealt with for breach of bail that he had had reasonable excuse for his absence.  He was sentenced on that later occasion both for the offence and for the breach of bail. 
3.	The appellant had been summoned before the court on an information alleging that he had had custody of a dog in contravention of a Disqualification Order made under section 1(1)(b) of the Dangerous Dogs Act 1989.  The issue of law giving rise to this appeal is that this information was amended during the course of the trial, in his absence, to allege (correctly) that the Disqualification Order had been made not under the Dangerous Dogs legislation but under the Protection of Animals legislation.  The amendment, therefore, was one which substituted a different charge after the six months period specified in section 127 of the Magistrates' Courts Act 1980.
4.	The order of disqualification for having custody of an animal for life had been made on 14th April 2003.  On that occasion the appellant had been convicted on nine charges of being the owner of a dog which was dangerously out of control in a public place, contrary to section 3(1)(a) of the Dangerous Dogs Act.  These offences would have carried a Disqualification Order as an available penalty.
5.	The police antecedents record indicated that a Disqualification Order for life was made on one of those charges.  It is not clear to me whether that is or is not a correct statement.  But he was also convicted on that occasion of one offence of doing an act causing unnecessary suffering to a dog contrary to section 1 of the Protection Of Animals Act.  The Disqualification Order produced at the Magistrates' Court, at the trial with which this count is concerned, was an order made under the Protection of Animals legislation in respect of that offence.  
6.	By the time this discrepancy came to light, counsel for the appellant, having failed to persuade the court to adjourn the trial in view of the appellant's absence, and having no instructions to enable her to act for him in his absence, had withdrawn and had left the building.
7.	In the case stated, the Justices described the proceedings in this way: 
"Counsel withdrew from the hearing when the Justices granted leave for the appellant to be tried in his absence.   
During the course of the trial, the prosecutor applied to amend the information when it was identified that the appellant was not disqualified under the Dangerous Dogs Act 1989 as alleged in the summons.  The Legal Advisor advised the Justices that it would not be in the interests of justice to consider the respondent's application in the absence of the appellant or his legal representatives.  The Justices had the option of aborting the trial and issuing a warrant for the arrest of the appellant or to invite the instructing solicitors to attend that application since defence counsel had left the court by that time.   
The Justices decided to invite the instructing solicitors to attend the application.  A member of the instructing solicitors duly attended.  She informed the Court that the appellant would not be prejudiced as the appellant took no issue with the facts.  However, she did not have any instructions from the appellant and objected to the application to amend the information.  The Justices granted the Crown's application to amend the information as follows." 
There is then set out the fresh charge brought by way of amended information, alleging that the appellant's custody of a dog was in contravention of an order made under the Protection of Animals legislation: 
"The Justices dismissed the information laid contrary to section 1(6) of the Dangerous Dogs Act 1989 and proceeded with the trial of the information contrary to section 2 Protection of Animals (Amendment) Act 1954.  The appellant was convicted in his absence." 
The case stated then records the maximum sentence upon summary conviction of an offence under the Dangerous Dogs Act 1989 as a level 5 fine.  The maximum sentence for an offence under the Protection of Animals (Amendment) Act 1954 is a term of imprisonment not exceeding three months.  
8.	In the case stated the Justices then go on to describe the subsequent Bail Act proceedings.  They describe an unsuccessful application by the defence to reopen the case under section 142 of the Magistrates' Courts Act which was refused by a Deputy District Judge on the grounds that this would not be in the interests of justice.  Four civilian witnesses had attended to give evidence.  There was no excuse for the appellant not to have attended and any challenge to the decision of the court should be by judicial review or appeal to the Crown Court.
9.	The case stated then goes on to summarise the facts found by the Justices and the evidence which had not been challenged before them.  It then sets out at paragraphs 7 and 8 of the case statement their opinion and the questions for this court.  Reading from paragraph 7: 
"(a) The appellant had been disqualified for life since 14th April 2003 for having custody of any animal.  He had a copy of the order served on him on 14th April 2003 and was fully aware of the terms of the order. 
 (b) The appellant was in breach of the order by the Court as it was alleged that he had custody of two dogs in his flat, a German Sheep dog and a Jack Russell dog.  These dogs were left to their own devices and barked all day disturbing neighbours which included four people with learning difficulties who were upset by continual barking of the dogs and could not use their garden. 
(c) The appellant had been granted a representation order on 15th November 2005 by the court and was represented when the application to amend the information was made. 
 (d) We were concerned that four witnesses who were present and ready to give evidence and it was the fourth listing of the case.  The appellant had absented himself from the trial without any explanation or any instructions to his solicitors.   
 (e) His solicitor representing him during the application accepted that the appellant would not be prejudiced as the appellant takes no issue with the facts, although she stated that she did not have instructions from the appellant and therefore opposed the amendment. 
 (f) We were satisfied that the amendment information was in the interests of justice as the appellant was seeking to keep dogs against an earlier ruling of the court.  The defective information described an identifiable misdoing namely that the defendant had custody of a dog and the amendment referred to the same offence.  The wording of the information was identical to section 3 of the Protection of Animals Act 1911.  The appellant was not misled or prejudiced." 
Then the case stated sets out the questions for this court: 
"(1) Whether the Justices were entitled to consider a breach of an order contrary to the Dangerous Dogs Act 1989 and a breach of an order under the Protection of Animals Act 1911 as arising out of the same misdoing such that they had the power to consider an amendment under section 123 of the Magistrates' Courts Act 1980? 
 (2) Whether the Justices were entitled to find that it was in the interests of justice to allow the prosecution to amend the information? 
 (3) Whether the Justices were entitled, in the situation where an amendment is made such that an absent defendant faces a custodial sentence where no such sanction was previously available, to continue to proceed to hear the matter in the defendant's absence?" 
10.	It is convenient to consider the three questions in the same order.  The first is whether there was power to order this amendment.  The Magistrates' Courts Act 1980 provides as follows by section 123: 
"(1) No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint. 
 (2) If it appears to a Magistrates' Court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing." 
Then the limitation of time provision, section 127, reads as follows: 
"(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a Magistrates' Court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within six months from the time when the offence was committed, or the matter of complaint arose."
11.	It may be that at first sight there is conflict between those provisions in relation to alleged offences which occurred more than six months before the application to amend (and thereby to introduce a new charge) is made.  But it is established by a number of decisions of this court that the power to amend exists and guidance is given as to the exercise of the power.  The phrase "arising out of the same misdoing" which is contained in the first of the questions to this court itself derives from decisions of this court.  In R v Scunthorpe Justices ex parte McPhee and Gallagher [1998] 162 JPR page 635, a robbery charge against two juveniles was to be amended because the defendants were willing to plead guilty to simple theft and common assault.  The hearing was more than six months after the commission of the offence.  The court, advised by the Justices' Clerk, refused to permit the new offence of common assault to be put.  Dyson J, giving the leading judgment on the appeal to this court, with which the Lord Chief Justice agreed, reviewed a number of authorities, including the Newcastle Justices case which has been referred to before us, and said that the following principles can be derived from them: 
"(1) The purpose of the six month time limit imposed by section 127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission. 
 (2) Where an information has been laid within the six month period it can be amended after the expiry of that period. 
 (3) An information can be amended after the expiry of the six month period, even to allege a different offence or different offences provided that --  
 (i) the different offence or offences allege the 'same misdoing' as the original offence; and 
(ii) the amendment can be made in the  interests of justice."
12.	In the Scunthorpe Justices case, the common assault and theft in that case arose from precisely the same set of circumstances which had given rise to the charge of robbery.  It was in those circumstances that the court held that the principle was satisfied and the court quashed the order of the Justices to refuse the fresh charges.  The words "arose from the same misdoing" derived from the judgment of McCullough J in an earlier case of Simpson v Roberts and should not be construed too narrowly.
13.	The argument for the appellant in this case, set out cogently in the skeleton argument by Mr Semple, is that the misdoing here is not the same.  The misdoing, he submits, is the breach of a court order and it was a different court order which was breached; thus the "misdoing" was different.  I would reject that submission.  The terms of the disqualification, under whichever legislation it was imposed, were that the appellant was prohibited for life from having custody of a dog.  That included, in the disqualification under the Protection of Animals legislation, from having custody of any animal.  The misdoing alleged against him was that he had custody of a dog and I would hold that the Justices did have the power in those circumstances to amend the information so as to charge the correct offence if it was in the interests of justice to do so.
14.	The second question is whether the Justices were entitled to find that it was in the interests of justice to allow the amendment.  In the Scunthorpe Justices case, it was not a case in which the amendment involved introducing a new charge which might carry an increased penalty; quite the reverse.  In dealing with the case, Dyson J went on to say this, at page 7 of the transcript that I have: 
"Once they [the Justices] are satisfied that the amended offence or offences arise out of the same or substantially the same facts as the original offence, the Justices must go on to consider whether it is in the interests of justice to allow the amendment.  In exercising their discretion the Justices should pay particular regard to the interests of the defendant.  If an amendment will result in a defendant facing a significantly more serious charge, that should weigh heavily -- perhaps conclusively -- against allowing the amendment after the six month time limit has expired." 
15.	That brings me to the decision of Richards J in R (on the application of the Director of Public Prosecutions) v Everest.  This was a prosecution appeal by case stated against a decision of the Magistrates to refuse to allow amendment of an information laid under section 161 of the Highways Act, which alleged that the defendant lit a fire on or over a highway.  The requested amendment was to charge the offence of lighting a bonfire on land which was not part of the highway but so as to endanger users of the highway.  That offence, unlike the offence of lighting a fire on the highway itself, is not an absolute offence but carries a statutory defence, and also, significantly, a higher level of fine.  Richards J dismissed the prosecution appeal.  He considered McPhee in some detail.  He had regard to the failure of the prosecution, which he described as "lamentable", to consider the case properly so as to charge the right offence or at least to spot the error at an earlier stage.  He held that the defence might have been conducted differently in the light of the statutory defence.  He also said at paragraph 19: 
"Another relevant consideration was that the amendment would result in the respondent facing a more serious offence with a maximum fine at level 5 rather than level 3, which represented a substantial increase in the context of a case of this kind." 
In the light of those and other considerations, Richards J upheld the decision of the Justices to refuse the amendment.
16.	In the present case, the first two factors do not apply.  In view of the information contained in the police antecedents record, I would not be unduly critical of the failure of the prosecution to realise that the Disqualification Order was in fact made only under the Protection of Animals Act.  Nor was there in this case, unlike Everest, scope for the defence to have been conducted differently on the facts.  But on the issue of penalty I take a different view.  This was not a case like Everest where it was only a matter of a higher level of fine.  Here, the substituted offence, unlike the original offence, carried a maximum penalty of three months' imprisonment.  The result of the court's decision is that he was tried for an offence which carried a significantly higher maximum penalty and in that sense it was a new charge, albeit arising from the same misdoing.  In my judgment, on the authorities, the court should not have allowed it.
17.	Mr Hext has argued strenuously that the reality of this case is that no injustice was caused.  There was never any suggestion that he had any defence on the facts and the Justices were told by the solicitor who came when called that no issue with the facts was raised.  We are left wondering what the defence to the charge was, which counsel had been instructed to present but did not feel able to present in his absence.  Mr Hext refers us to Gleeson, a decision of the Court of Appeal [2004] 1 Cr.App.R 406, in which Auld LJ referred to the criminal process not being a game; the court should have regard to the objective of acquitting the innocent and convicting the guilty.  The Crown Court was there concerned with, and upheld, a late amendment to an indictment so as to charge the correct offence when counsel had given no advance notice of his intention to make a particular submission of no case to answer which was not foreshadowed in any defence statement.  The Court of Appeal had no hesitation in endorsing the decision to allow the amendment, holding that the defendant was not prejudiced in the conduct of his defence and the appeal was dismissed.  
18.	I would not say anything in the present context which might be thought to lessen the force of that judgment, but the court was not there dealing with the introduction of a new charge after the expiration of a statutory time limit.  The principles which apply to that process are set out in the decisions of this court to which I have referred.  The fact is that a new charge here was introduced in the appellant's absence after the time limit, rendering him liable to imprisonment when he had not been before.  In my judgment, that should be regarded as a very important element in the exercise of the discretion.  I would therefore answer the first two questions posed in the case stated by holding that the Justices were entitled in law to make the amendment, but not to find that in this particular case it was proper course to take.
19.	I deal with the third issue more shortly.  If I had upheld the Justices' decision to amend the information, I would have held that they should then have adjourned the trial to give the appellant a further opportunity to attend.  We do not know, of course, what advice he had been given as to the possible penalty which might be imposed.  We do not know what, if any, reasons he had for not attending court.  We know only that he had no reasonable excuse.  The result of the decision was that he was tried, unrepresented and in his absence, for an offence for which he might face a prison sentence.  In the event on a later date a community sentence was passed, so the court must have been of the opinion, specified in section 148 of the Criminal Justice Act 2003, that the offence was serious enough to warrant such a sentence.  Such a sentence would not have been available on conviction for the original offence.  
20.	The word "misled" in section 123(2) of the Magistrates' Courts Act must, in my view, be given a wide meaning.  The appellant had faced no more than a fine for his offence and had not attended the court.  In the event he was tried for an imprisonable offence.  The terms of that subsection reinforce my view that an adjournment of this case should have been granted.
21.	I would therefore allow the appeal.  I would answer the third question in the negative, allow the appeal and quash the conviction. 
22.	LORD JUSTICE SCOTT BAKER:  I agree.  The questions will therefore be answered: the first question in the affirmative, the second and third questions in the negative.  Thank you very much.
23.	MR SEMPLE:  My Lords, my client is Legally Aided.  I would ask for the appropriate order as to costs. 
24.	LORD JUSTICE SCOTT BAKER:  Are you asking for your costs out of Central Funds? 
25.	MR SEMPLE:  My Lord, yes. 
26.	LORD JUSTICE SCOTT BAKER:  Ordinarily you would simply get a Legal Aid taxation order.  You are not asking for costs against the respondent? 
27.	MR SEMPLE:  My Lord, no.  Legal Aid taxation. 
28.	LORD JUSTICE SCOTT BAKER:  You can have that.  Thank you.