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Material Averments.

Does the prosecution have to prove everything alleged in the information? First published in the Criminal Law & Justice Weekly (2010) 174 JPN 294 and 311. Additional case references in square brackets.

Put at its simplest, averments, in the context of a criminal prosecution, are the allegations made in the charge, information or indictment.  However, not all averments must be proved in order to secure a conviction.  Those averments which it is essential for the prosecution to prove are known as "material averments".  In the majority of cases, averments will only be material if they allege that which is required to prove an element of the offence charged or where their impact on the defence is such that it would be unfair not to require the prosecution to prove them.  The prosecution may be able to amend a material error so long as any prejudice to the defence can be overcome by means of an adjournment.  If an averment alleges something which is not relevant to the offence then it will not be material and may be dismissed as "mere surplusage".  But, the prosecution cannot avoid having to prove something which is an element of the offence by failing to include it in the information.

The content of the information is prescribed primarily by r 7.3 of the Criminal Procedure Rules 2010 which provides:

"(1) An allegation of an offence in an information or charge must contain—

(a) a statement of the offence that—

(i) describes the offence in ordinary language, and

(ii) identifies any legislation that creates it; and

(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

(2) More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission." 

The form of the information is broadly prescribed by the Consolidated Practice Directions which, so far as the alleged offending is concerned, simply states: "Alleged offence: ........................... (short particulars and statute)".  The prescribed form of indictment is even less instructive merely specifying: "charged as follows: - STATEMENT OF OFFENCE" and "PARTICULARS".  There is, therefore, no express requirement for the information or indictment to state either the date or place of the alleged offence.  It is traditional, however, for charges to begin by stating the date on which it is alleged the offence took place and the place at which it occurred.  Without this information a charge would lack particularity and focus and the defence could face an unnecessary difficult and costly task in investigating the allegation and in providing alibi or other relevant evidence.


The date of the offence will rarely be a material averment as it is generally not an element of the offence.  If, however, the offence involves doing something on a prohibited date, it will be necessary for the prosecution to prove that the alleged act was done on that date.  The date may also be material where there is an issue as to whether the information was laid within a statutory time limit or within the currency of the legislation alleged to have been infringed.  The principle that an alleged date is not generally a material averment applies not just to the date of the alleged offence but to any date set out in the charge.  In Jevons v Cosmosair plc (1998) 162 JP 68, Mantell J said: "The question of date, whether it be in an information or summons or an indictment, is always a matter capable of amendment and the mere fact that the date is wrongly stated, will seldom, if ever, be a matter which would lead a court to hold that the charge was void." 

The bedrock of the legal principle relating to material averments lies in R v Dossi [1918] 13 Cr App R 158.  Dossi was charged with indecently assaulting an 11 year old girl "on March 19th 1918" and, at his trial, Dossi called alibi evidence for that day.  The jury found Dossi not guilty with regard to March 19th but guilty if the indictment covered other dates.  The indictment was amended to allege the offence on "some day in March 1918" and Dossi was convicted.  He appealed, inter alia, on the basis that there was no power to amend the indictment and that the original not guilty verdict should stand.  Atkin J held:

 "From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. ... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.  It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual date specified in the indictment."

R v Dossi was applied by the Court of Appeal in another alibi case, R v Lowe [1998] EWCA Crim 1204, where Henry LJ said: "The law is clear.  As a general rule, if the evidence at trial as to date differs from the date laid in the count, that is not fatal to a conviction (Dossi).  The exception will be where the date may determine the outcome of the case, such as where the age of the victim is part of the charge.  It follows from the above that it is not strictly necessary to amend the indictment if the evidence shows that the offence was committed on another date, rather than the actual date specified in the indictment."  Lowe argued that even if it was not necessary for the date of the alleged offence to have been amended, he should have been given the opportunity to seek an adjournment so that an investigation could have been made as to whether he had an alibi for other dates.   Henry LJ noted, however, that "it must have always been apparent to the Defence that there could be no certainty as to the date, that the date was not a material averment in this indictment, and that what mattered was whether the events had happened."

In R v Pritchett [2007] EWCA Crim 586, the defendants were convicted of keeping a brothel "between the 15th October 1998 and the 30th September 2005", contrary to s 33A of the Sexual Offences Act 1956.  S 33A had been inserted into the 1956 Act by the Sexual Offences Act 2003 only with effect from 1st May 2004.  The defendants subsequently realised the significance of this and appealed.  Keene LJ, giving the judgment of the Court of Appeal, accepted that there was an irregularity in the way the indictment had been formulated but concluded that the question was whether the defect rendered the indictment a nullity.  He noted that R v Dossi was authority for the proposition that "normally the date of an alleged offence is not to be regarded as a material averment in an indictment", but he also noted that there could be situations where the dates charged did not disclose an offence because, at the time alleged, the offence did not exist.  "That however was not the case here.  Offences of this kind have been held to be continuing offences (see Anderton v Cooper (1981) 145 JP 128).  It does not have to be established by the Crown in such a situation that a continuing offence of that kind continued throughout the whole of the period.  It would suffice if the Crown was able to prove the commission of the offence in the period from 1st May 2004 onwards." 

R v Pritchett was followed in R v Goldsmith [2009] EWCA Crim 1840, where the indictment alleged an offence contrary to the Fraud Act 2006 over a period including a fortnight when it was not in force.  Roderick Evans J said: "The way the date is pleaded does of course produce an irregularity.  That is not determinative of this issue (see R v Pritchett) as the date in an indictment is not normally to be regarded as a material averment, and in this case the offending behaviour which underlies the count arose after the date the Act came into force.  Therefore that count was not defective." 

In R v Mansfield [2009] EWCA Crim 2158, the indictment averred that the alleged victim of indecency was a child under 16 whereas, for the purposes of the Indecency with Children Act 1960, a child was a person under the age of 14.  Openshaw J said: "The indictment should ... have averred that [the boy] was 'a child under 14'.  [The particulars] ... spanned his 14th birthday and the indictment was in this respect defective.  However, this is not fatal to the conviction if the error 'cannot in any way have prejudiced or embarrassed the defendant', to use the test formulated by Lord Bridge of Harwich in the case of R v Ayres [1984] AC 447. ... The question therefore is:  was the [defendant] prejudiced or embarrassed and are the convictions unsafe as a result? ... Perhaps understandably, in view of the particulars in the indictment, the judge wrongly told the jury that ... they had to find only that the acts were done and that [the boy] was under 16 years old.  This was a misdirection ... [but] it is clear from the authorities that this misdirection would not be fatal to the safety of the convictions, if it is clear to us that the jury must have been sure, not just that the incidents happened but that they happened before the boy's 14th birthday. ... [Having reviewed the evidence] we are sure that the jury would have found that he was under the age of 14 at the time that all these acts were committed upon him."

In Burrington v RSPCA [2008] EWHC 946 (Admin), Burrington appealed against his conviction for offences committed "on or about 26th September 2002" of causing unnecessary suffering to sheep contrary to s 1(1)(a) of the Protection of Animals Act 1911.  Burrington contended, inter alia, that he could not be guilty of causing suffering on 26th September when he had not been present on his farm that day.  Mrs Swift J said: "[The prosecution] submits that [the neglected condition of the sheep's feet had not] arisen overnight.  They had been present for some time and certainly in the days leading up to 26 September. ... The dates in the summonses were not material averments, and ... at all times in the days immediately preceding 26 September, when he was in charge of the sheep, [Burrington] had failed to take the steps properly to supervise and treat them. ... I accept [the prosecution's] arguments in relation to that particular matter."

Asda Stores Ltd v Wandsworth Borough Council [2007] EWHC 433 (Admin), was another case where the nature of the offence was such that the offence must have occurred over a longer period than that averred.  Asda were prosecuted under the Food Safety (General Food Hygiene) Regulations 1995 after a customer "saw a mouse feasting on a chocolate bar" on a shelf of one of its stores.  Two charges were brought, under the same provision, one alleging the fact that there were mouse droppings amongst the confectionery and the other alleging that Asda's pest control procedures were inadequate.  In the magistrates' court, the prosecution's submissions included that, although the allegation relating to Asda's procedures was "charged by reference to 'on or about 15 June', the date was not a material averment".  Asda appealed on the basis that the two charges, having been brought under the same provision, amounted to double charging.  Maurice Kay LJ agreed with the justices that it was appropriate for the prosecution to have proceeded on both charges.  He considered that the two charges were separate offences but that, even if the statutory provision created a single offence, it was one which could be committed in more than one way.  In the course of his judgement he effectively also upheld the justices view that the alleged date of offending was not a material averment.  He said that although the charge relating to procedures had, like the other charge, been pleaded as having occurred on or about 15th June, "it is obvious that an allegation of inadequate procedures will usually involve evidence covering a longer period of time than a single day.  In the present case, the advance disclosure included evidence which covered a period of months.  That is how the case was eventually and appropriately opened." 

[See also R v Fisher, and R v Alan B]


Some activities are only offences if conducted in a certain place or type of place such as on a road or in public or in food premises.  The exact place of offending, however, although usually of relevance, will rarely be material.  In R v DPP ex p T [1999] EWHC Admin 756, T was committed for trial on a draft indictment alleging indecent assault of his nieces on various dates many years earlier when they were children.  At the time of the committal proceedings the prosecution possessed a letter from the housing authority indicating that T did not live at the address where the offences were alleged to have taken place until 1973 which was after the dates alleged in the first three counts.  At T's application for judicial review, he submitted that because the letter, which the prosecution conceded should have been disclosed prior to the committal proceedings, was not in evidence at the committal hearing, the committal should be quashed.  T argued that the prosecution had presented evidence as credible and accurate when they had incontrovertible evidence to the contrary.  Rose LJ said: "... that ... substantially overstates the position.  The information in the letter clearly cast very serious doubts as to the location where the alleged indecent assaults ... had taken place, but ... the essence of the allegations ... was the conduct of indecent assault, where it occurred and precisely when it occurred were not material averments." 

In R (Donnachie) v Cardiff Magistrates' Court [2009] EWHC 489 (Admin), the prosecution alleged that a company had applied a false mileage reading to vehicles in Gloucester and Newport and that the offences under s 1(1)(a) Trade Descriptions Act 1968 were attributable to the neglect of Donnachie, its company secretary.  Donnachie sought judicial review contending that the informations were void ab initio because they alleged offences committed outside of the prosecution's local authority area.  Sweeney J held that the prosecution's powers under s 222 of the Local Government Act 1972 were sufficiently wide to enable it to prosecute for offences outside of its area where it considered it expedient to do so for the promotion or protection of the interests of the inhabitants within its area.  He therefore held that the informations were valid.  He went on to say, however, that "for the purposes of the trial, the precise location of the 'clocking' is irrelevant, provided that it was in Wales or England."  In other words, the place of offending was not a material averment.

[See also DPP v Underwood and R v Rooney]

Actus reus

If the prosecution allege that particular acts give rise to an offence then it is those acts, and no other, which it must prove.  In Decidebloom Ltd t/a Stoneacre Motor Group v Tameside MBC [2008] EWHC 3328 (Admin), the defendant company advertised using the words "Drive away a New Fiat".  A consumer visited the company's showroom and purchased such a car.  He then found that the car had been registered in April 2006.  The company was convicted of supplying the Fiat to which the false trade description "brand new" had been applied by its salesman prior to the consumer's purchase.  The company appealed.  Sir Anthony May (P) said: "[In R v Anderson (1988) 152 JP 373, the court held] that it was a question of fact for the jury to decide whether a description of a previously registered motor car as 'new' was a false description within the meaning of the Trade Descriptions Act 1968.  The word 'new' is susceptible to a variety of interpretations ...  However, in the present case the information did not allege that the appellant had supplied a vehicle, describing it as new.  It alleged that they had described it as 'brand new' which, on the evidence ... they had not.  The question therefore was ... whether it was open to the justices to convict on the basis only that the vehicle had been described as new.  That question, in my judgment, turns on whether the addition of the word 'brand' to the adjective 'new' was material, for if it was, the prosecution would have failed to establish a material element of the information and an acquittal should follow.  In my judgment, there was, in the context of this case, a material difference between describing a vehicle as 'brand new' and describing it merely as 'new'.  A pre-registered vehicle could not, in my judgment, properly be described as 'brand new', but as Anderson shows, it would be open to serious argument on the facts ... whether it was a false description to say of a pre-registered car that it was 'new'.  For instance, a pre-registered car may never have been on the road and it might at least be arguable that a reduced warranty period alone did not necessarily mean that the car itself was not new. ... [The] information charging as it did a description containing the words 'brand new', and the prosecution evidence not succeeding in establishing that that description had been applied, the only conclusion the justices could properly have come to was that the information was not proved."

In DSG Retail Ltd v Stockton on Tees Borough Council [2006] EWHC 3138 (Admin), a trading standards officer saw a tumble dryer at a branch of Currys, one of the defendant's stores, priced at £159.99.  Curry's leaflet gave a Price Promise stating: "Currys has unbeatable low prices because, in the unlikely event that you find a lower price for the same model and offer from a local retail store, we will reduce our price by 110% of the difference."  The officer saw the same model of tumble dryer at a local Comet store where it was for sale at only £119.99.  Curry's refused to honour the Price Promise.  The defendant was prosecuted under s 20(1) of the Consumer Protection Act 1987 for giving a misleading price indication.  When cross examined, the officer's attention was drawn to the fact that the receipt she had been given stated that it was for the tumble dryer "plus vent".  She did not know whether the dryer being sold by Comet also came with a vent.  A store manager who gave evidence as to the situation at Comet was not able to say whether the dryer being sold for £119.99 came with a vent kit.  The defence thus maintained that Currys' Price Promise did not apply because the goods being sold at Comet were not the same as those sold at Currys.  The District Judge nonetheless convicted on the basis that the goods were the same.  Furthermore, he relied on the wording of a second Price Promise, displayed on A4 posters in the store, which used the words "product or offer" rather than the words "model and offer" which appeared in the leaflet upon which the prosecution had been brought.  On appeal, Lloyd Jones J said: "The evidence of [the witness from Comet was critical].  His evidence was that dryers sometimes come with vent kits and sometimes without vent kits.  In the light of that, I consider that it was not open to the tribunal of fact to come to the conclusion on the basis of the evidence before him that it was established to the criminal standard that the products were identical."  Lloyd Jones J went on to say: "Given the specific basis on which the charges were framed, I consider that the District Judge was not entitled to take into account the evidence of the two forms of Price Promise. … I do not need to … say anything further about the possibility that the case might have been put on an alternative basis.  It was not charged on that alternative basis, nor was the prosecution pursued before the District Judge on that basis."  It is difficult to see how the prosecution could have succeeded even if it had proceeded on the basis of the poster rather than the leaflet since an offer to sell a dryer without a vent was neither the same product nor the same offer as one where the vent was included.  Nonetheless, the point of law is clear: the core facts which give rise to the actus reus of the offence asserted by the prosecution in their information are a material averment and it is those facts which must be proved. 


The act or omission alleged will almost inevitably be a material averment but this will not necessarily extend to all the detail averred to such as type or quantity of items involved.  An averment as to an amount is unlikely to be material unless the statute creating the offence specifies that an offence is only committed if a certain magnitude is involved.  Where it is only necessary for the prosecution to prove an offence in relation to one item it will not be a material averment if the prosecution alleges an offence in relation to more than one. 

In R v Miller (2000) EWCA Crim (99/2520/Y4), the Treasurer of a tenants' association was convicted of theft and forgery relating to the funds of that association.  He appealed, inter alia, against his conviction relating to the theft of funds raised from bingo sessions held by the association.  Miller had been present on 56 occasions when it was said that a profit of about £75 was made each time.  He denied that profits were made and contended that there were substantial loses.  The Court of Appeal held : "The £75 was, it is agreed, effectively an estimate ... The precise sum of money concerned was not, in the view of this court, a material averment here and it was accepted throughout that the monies had to be to a degree estimates. ... and there is nothing wrong either as a matter of law or as a matter of principle with that conviction."

In Nash v Birmingham Crown Court [2005] EWCH 338 (Admin), Nash appealed against conviction on an information which alleged: "You did cause unnecessary suffering to certain animals namely 75 domestic cats by unreasonably omitting to provide the said animals with proper and necessary care and attention, contrary to s 1(1)(a) Protection of Animals Act 1911".  She contended that the information was defective as being duplicitous and failing to give sufficient particularity as to the alleged offence.  Stanley Burnton J said: "I unhesitatingly reject the submission that it is incumbent on, or necessary for, the RSPCA to apply for a separate summons for each animal alleged to have been caused unnecessary suffering.  Identified conduct causing such suffering to a number of animals may be the subject of a single charge and a single summons. ... Clearly a charge under s 1 of the 1911 Act, that the conduct of [Nash] led to the accumulation of large amounts of ammonia which caused unnecessary suffering to 75 cats, would be proved, even if the suffering in question on the evidence was found to be limited to a smaller number."


An assertion as to who owns the property which is the subject of a criminal charge is not generally a material averment.  In Hibbert v Mckiernan [1948] 2 KB 142, the defendant was charged with the theft of golf balls he had taken from a golf links whilst trespassing and which were said to be the property of the members of the golf club who had lost them whilst playing there.  He appealed on the ground that the club had no property in the balls.  Humphreys J said: "In such a case as the present it is not necessary to allege or prove who is in law the owner of the goods.  Indeed, it is not essential to name any person as the owner of the goods in an indictment for larceny though it is the practice to do so."  See also R v Gill, post.

There will be circumstances where the ownership of property as stated in a charge is a material averment.  Such cases are likely to be where the prosecution has named the owner of stolen property in the charge but subsequently seek to prove their case on the different premise that the ownership of the property is unknown.  In R v Gregory [1972] 2 All ER 861, Gregory was charged with handling a stolen starter motor "the property of William Alan Wilkes".  The prosecution was unable to prove ownership but the Recorder amended the count by deleting the reference to Mr Wilkes as being the owner on the basis that those words "were mere surplusage".  On Gregory's appeal, Edmund Davies LJ said: "This is a case about a perfectly ordinary starter motor, and from the outset it was conducted by the Crown on the basis that the motor belonged to Mr Wilkes and to no one else.  We do not agree ... that in the present case the assertion as to ownership contained in the particulars ... was mere surplusage.  It was desirable that they should have been inserted, they were properly inserted, and they informed the defence of the nature of the case and the only case that the Crown set out to establish, a case which ... later dissolved into thin air. ... If the defence had known beforehand that the case they had to meet was one of handling a stolen starter motor, the property of a person unknown, their approach might well have been entirely different."  Similarly, in Iqbal v DPP [2004] EWHC 2567 (Admin), Iqbal was convicted of handling a stolen laptop computer alleged to be the property of his employer.  Such ownership was not proved, but Iqbal was convicted.  On Iqbal's appeal, Silber J said: "In my view whether or not an assertion about the ownership of property is material will … depend on how the case has in fact been conducted below. … [The prosecution suggest] that the ownership of the computer was immaterial.  I do not agree because by relying … in the way that [the prosecution] did on [his employer's] ownership of the computer, [Iqbal] would be seriously prejudiced if the conviction could now belatedly be upheld on the basis that this was a computer of a person unknown."

In Sturrock v DPP [1996] RTR 216, Sturrock was stopped by the police as he was riding a fairly new, expensive, bicycle.  He said he had bought the bicycle, but later admitted that he had taken it without consent and that it did not belong to him.  Sturrock was charged with taking a conveyance for his own use "without having the consent of the owner or other lawful authority".  At his trial, Sturrock made a submission of no case to answer on the basis that the prosecution had not proved ownership or lack of consent.  That submission was rejected and Sturrock appealed.  Waterhouse J said: "[Sturrock] suggested that [the prosecution] failed to establish, first, that there was an owner and, secondly, that [Sturrock] did not have the consent of the owner.  The second [submission] is wholly insupportable, having regard to the express admissions made by [Sturrock] ... and I regard the first point as barely arguable.  It is certainly without merit. ... I am wholly satisfied that the justices were entitled to infer, on the basis of their findings of primary fact, that the cycle had not been abandoned and did have an owner, even though the owner of the cycle had not been identified." 

In R v Adams [2003] EWCA Crim 3620, Adams, an insolvency practitioner, was convicted of theft of a chose in action, it being alleged that he had drawn excessive amounts from funds in respect of his reasonable fees.  Adams appealed on the basis that the indictment was defective because it alleged that the debt was the property of the debtor whereas it had been held in trust for the creditors.  Laws LJ said: "The [question] is whether the identification of the loser was a material averment to these counts of theft.  We are satisfied that it was not."

[See also R v Fuschillo and Musa v Le Maitre] 

Motive, method, intent, consent

A defendant's motive for committing an offence will seldom be a material averment.  Even where intent is an element of the offence, the reason why the defendant may have had the intent, although clearly relevant, does not have to be proved.  Similarly, averments as to consent (or lack of it) or by what means an offence was committed will only be material if they are an element of the offence.  In R v Wood [2000] 3 All ER 561, Wood was convicted of offences for which the trial judge would have sentenced him to three years' imprisonment.  Wood, however, had a previous conviction for buggery and, applying s 2 of the Crime (Sentences) Act 1997, the judge imposed a sentence of life imprisonment.  This was mandatory where the defendant had, at the time the instant offence was committed, been convicted in the UK of another "serious offence".  Wood appealed contending that, as a matter of law, his previous conviction was not for a "serious offence".  Roch LJ said: [In 1990, Wood] was convicted of buggery, which was then an offence which was proved if the prosecution proved anal intercourse, whether or not the complainant consented.  Lack of consent was not then a material averment ... The 1997 Act provides that rape is a serious offence for the purpose of s 2 of the Act.  In rape lack of consent is a material averment.  To obtain a conviction the prosecution must prove lack of consent on the part of the complainant ...  Thus the offence with which [Wood] was charged and convicted in 1990 was not the same offence as that contained in s 2(5)(e) of the 1997 Act."

In R v McNeil [2003] EWCA Crim 2209, McNeil was convicted of assault on the sole evidence of witnesses who saw him strike and kick a woman who then fled and jumped or fell from a balcony.  McNeil appealed contending that the trial judge had failed to direct the jury that they must be agreed as to whether the injuries had been caused by the blows or the fall.  Mantell LJ said: "We think that there is no merit in the submission.  It is perfectly true ... that a jury must be directed that they must be agreed upon each and every material averment in a charge.  That in the case of assault occasioning actual bodily harm, means that they must be agreed that an assault had taken place and that that assault resulted in actual bodily harm.  The mechanism by which the bodily harm came about is not a material averment, just as intention is not a material averment to a charge of this kind. ... Thereafter it matters not as to whether [the jury] could agree that the injuries were sustained prior to the fall, or after the fall, or by a combination of both."

Variant offences

Criminal statutes often provide that the offences they create may be committed in more than one way and, where they do, each such version is a separate offence.  The prosecution may have evidence to prove only one variation of the offence and, in such cases, it is essential that they allege that version.

In Felix v Director of Public Prosecutions [1998] Crim LR 657, Felix affixed a prostitute's advertising cards inside an enclosed telephone box which had a six inch gap all round at the bottom open to the air.  This was only a littering offence under the Environmental Protection Act 1990 if the telephone box was a "public open place" which s 87(4) defined as "any place in the open air to which the public are entitled or permitted to have access without payment; and any covered place open to the air on at least one side and available for public use".  Felix was convicted.  On appeal, Blofeld J said: "The summons used the words 'from a place in the open air', which indicated that the prosecution were bringing their case on the first part of the definition in s 87(4). ... In my view, as the summons was drafted, the prosecution was only entitled to conviction if the first part of the definition was proved."  Blofeld J said that had the summons used the generic term "public open place" the prosecution would have been free to rely upon either definition.  This illustrates the danger in charges being drafted more narrowly than necessary to specify the offence. 

In Foster and Rutherford v DPP [2004] EWHC 2955 (Admin), S, aged 15, lived with foster parents.  On 1st March, she met and went to the home of the defendants who believed her to be at least 16.  The foster father reported S missing.  In the early morning of 2nd March, the police telephoned the defendants and told them they were looking for S who was underage.  The police subsequently found S at the defendants' home.  They were convicted under s 2(1)(a) Child Abduction Act 1984 on an information alleging that, on 2nd March, without lawful authority or reasonable excuse, they had detained S, a child under the age of 16, so as to remove her from the lawful control of her carer.  S 2(1) of the Act distinguishes, in its paragraphs (a) and (b), between the offence of taking or detaining a child so as, respectively, to either "remove" him or "keep" him from his carer.  The defendants appealed on the ground that the offence charged under s 2(1)(a) could not have been committed on 2nd March as there was no act of removal on that day.  Any offence under limb (a) of s 2(1), they argued, would have been committed on 1st March, for which date they had the statutory defence that they believed S to have attained the age of 16, it not being until 2nd March that they became aware she was under age.  Pritchard J said: "The issue for the District Judge was whether, notwithstanding an earlier taking or detention, the events of 2nd March 2003 were capable of amounting to a detention so as to remove S from the lawful control of her foster parents. ... [It] is clear from the wording of the section that Parliament intended a material distinction to be drawn between the two forms of the offence, which, when applied to facts such as the present, is critical to guilt or innocence. ... [A] conclusion I would draw from the separation of these concepts is that, when laid in a charge, each is a material averment which alleges one of two separate forms of the same offence. ... The offence charged was not proved."  Alleging the wrong material averment, by choosing the wrong limb of the offence was fatal.  If the prosecution was not sure which version of the offence to allege, it could and should have kept its options open by laying alternative informations.

Averments and amendments

An uncorrected error in an information is not fatal to a prosecution unless it is a material averment and has prejudiced the defendant; see R v Lowe and R v Mansfield, ante.  Where the error is material, it should be amended and, if necessary, the case adjourned so as to avoid injustice or prejudice by enabling the defence to prepare to meet the amended charge.  There is, therefore, a close correlation between material averments and s 123 Magistrates' Courts Act 1980 ("MCA") which deals with "defect in process" and provides:

"(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."

The effect of s 123 MCA was explained in Wright v Nicholson [1969] QB 38, albeit that the references there were to its predecessor provisions in s 100 of the 1952 Act which were in identical terms.  Wright was convicted upon similar facts to those in R v Dossi, ante, save that, had the case been adjourned, he may have been able to produce an alibi for not just the averred day of the offence, but for the entire month.  Parker LCJ said: "This was a case in which the information laid a specific day ... It of course has always been held that [the words of s 100(1) of the Magistrates' Courts Act 1952 – now s 123(1) MCA] cannot be read literally as meaning: there can be no attack on an information however fundamental the defect.  It depends in every case whether, for instance, the variance between it and the evidence is such as to require an amendment.  Circumstances vary infinitely, and it may well be that in many cases a variance between the evidence and the information will not require even an amendment; a misdescription of premises might not even require an amendment.  But, as it seems to me in this case, unless the information is amended there might be grave injustice to [the defendant], an amendment is called for.  Once an amendment is called for and granted, then s 100(2) [now s 123(2)] operates, which requires the court on the application of the defendant to adjourn."

In R v Gill [1963] 2 All ER 688, Gill was convicted of conspiracy to steal a lorry and its load from his employer.  A ground of his appeal was that the indictment had referred to his employer as "AE Hicks Ltd" whereas he was employed by "AE Meeks Ltd".  Gill had raised this with the court when he was found guilty but the indictment was not amended.  Edmund Davies J said: "Clearly this should have been done, as it could have been even after verdict (R v Dossi).  But, as no amendment was in fact made, it is now submitted that the misdescription of the owner ... renders the conviction ... invalid.  This court rejects that submission.  ... There was in [the] counts a sufficient description of the property referred to for it to be identified with certainty, and the addition of the proprietor's name was, having regard to the nature of the charges, ... mere surplusage. ... Having said that, however, this court must certainly not be taken as discouraging the present useful and most desirable (and sometimes essential) practice of including in the indictment the owner's name, where known, or as approving of the failure to amend in the present case, where the obvious errors were actually pointed out by the accused man himself." 

In Kay (HSE) v Biggs and Botto (T/A Print-Pac Services) [1998] EWHC Admin 1074, the prosecution alleged that the defendant had supplied an extractor fan which did not comply with the statutory safety provisions in that it did not have a safety guard.  The information specified that the supply had taken place on 12th May.  The prosecution was given the opportunity to amend the date to the 9th May, but declined to do so.  The trial court found that the supply had taken place on the 9th and dismissed the information.  On appeal, Rose LJ held that there was no unfairness to the defendant in the prosecution's adherence to the 12th May and that "the date was not in this case a material averment".  He said: "What was at the heart of this case, on whatever date the machine was supplied, was whether or not it was supplied in a sufficiently safe state ... [The court] concluded wrongly ... that the date and place of supply were [also] essential elements."

In Duff v DPP [2009] EWHC 675 (Admin), Duff had driven his wife's car in excess of a speed restriction.  When his wife received a request for information as to who was driving the car at the relevant time, Duff returned the form indicating that he had been the driver.  On 7th June, he received a notice of intended prosecution and a request for information addressed to himself but, because he had already completed the form sent to his wife, he did not complete that form.  Duff was convicted by the magistrates' court of failing, between 7 June and 6 July, to give information required under the Road Traffic Act 1988.  He appealed contending that, having returned his wife's form, he had not failed to give the information subsequently requested of him and that, allowing for time for service, the statutory 28 days in which he had to reply to the request had not ended by the 6th July which was the last date stated in the information.  Sweeney J said: "Whatever the appellant did in relation to the s 172(2)(a) requirement served on his wife, the requirement served on him was plainly a valid one. ... The appellant chose not to answer the requirement. ... The clear wording of s 172(7)(a) of the 1988 Act, in combination with r 4.10(2) of the Criminal Procedure Rules 2005, meant that time began to run on 9 June and ended on 6 July. ... Even if ... that was wrong, the court was plainly right, in my view, to conclude that, on the facts of this case, no amendment was needed, as the justices, via s 123 of the Magistrates' Courts Act 1980 and the underlying case law would have been entitled, on the facts here, to reach a guilty verdict without any need to amend at all."

In Wandsworth London Borough v Rashid [2009] EWHC 1844 (Admin), it was held that, even where an amendment may not be required, if the prosecution ask for one in the interests of clarity, it ought to be allowed.  The information had alleged that "being the manager of JD Sports ... and the producer of controlled waste" Rashid had failed in his duty to take all reasonable steps applicable to him in that capacity to prevent the escape of waste, contrary to s 34(6) Environmental Protection Act 1990.  At the trial the prosecution sought to amend the information by deleting the word "and" so as to make it clear that it was JD Sports and not the defendant who was "the producer of controlled waste".  The magistrates considered an amendment unnecessary as they were "well aware of the true basis of the information".  On appeal, Pill LJ said: "This appears to me to be a clear case where the amendment should have been permitted under [s 123 MCA].  It had the merest technical effect and I do not accept or, with respect, understand the reasoning of the magistrates which led to their decision.  It was sought only to make clear that it was JD Sports and not Mr Rashid who were the producers of controlled waste."  In refusing to amend the information the magistrates had relied upon the Divisional Court's guidance, given in New Southgate Metals Ltd v London Borough of Islington [1996] Crim LR 334, that: "If the error [in the information] is so trivial that no amendment is required [and the defendant is] always aware of the true basis of the complaint, then the conviction may be upheld even on an unamended information."  The fact that no amendment was necessary did not, however, mean that the court should not accede to a prosecution request to amend in the interests of clarity. 


Nothing in this article should be seen as indicating that exactness in the drafting of informations is other than of extreme importance.  Even correctable errors are unlikely to be without consequence.  If the prosecution is seen to be imprecise in the allegations it makes, it could affect the way its evidence is perceived and making amendments can be costly if they require an adjournment to avoid prejudice.  Amendments, adjournments and unnecessary costs can be avoided if informations are drafted with care.