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Amending the Defendant’s Name

Victor Smith traces the origins of the principle that a charge cannot be amended by substituting one defendant for another and considers the Platinum case which highlights the distinction between entities that are truly different and the same defendant who has merely been misnamed. First published as “Who’s in the dock?” at (2018) 168 NLJ 7813, p11 with Part 2 at (2018) 168 NLJ 7814, p11.

There is nothing more fundamental to the administration of justice than that the person who is suspected of committing an offence is the one who has to face the charge.  It is imperative that the correct defendant is identified, named and proceeded against within any applicable statutory time constraints.  Equally, it would be anathema if a guilty party was able to escape justice by reason of a processing error in relation to its name.  Fortunately the position is that the defendant named in an information (or written charge) or summons (or requisition) cannot be amended so as to substitute a different person or legal entity, but an error in the name of a correctly identified defendant can be corrected. 

Power to amend

The power to amend is usually attributed to s 123 Magistrates' Courts Act 1980 ("MCA") which provides:

"Defect in process.

(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 former s 100 Magistrates' Courts Act 1952 ("MCA 1952") was in identical terms and closely followed the original version in s 1 Summary Jurisdiction Act 1848.  As explained by Widgery LCJ in Garfield v Maddocks [1974] QB 7, [1973] 2 All ER 303:

"The question of amendment of [an] information in [the] magistrates' court is primarily dealt with in [s 100(1) MCA 1952]. … Those extremely wide words, which on their face seem to legalise almost any discrepancy between the evidence and the information, have in fact always been given a more restricted meaning, and in modern times the section is construed in this way, that if the variance between the evidence and the information is slight and does no injustice to the defence, the information may be allowed to stand notwithstanding the variance which occurred.  On the other hand, if the variance is so substantial that it is unjust to the defendant to allow it to be adopted without a proper amendment of the information, then the practice is for the court to require the prosecution to amend in order to bring their information into line.  Once they do that, of course, there is provision in s 100(2) whereby an adjournment can be ordered in the interests of the defence if the amendment requires him to seek an adjournment."

That the power to permit an amendment is provided for by what is now s 123 MCA was also expressed by May J (appearing with Widgery LCJ) in R v Newcastle-Upon-Tyne Justices ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517 and by Butler-Sloss LJ and Latham J in Aldi, post.  However, no reference to a power to amend can be found in s 123 MCA and the better view may be that expressed by McCullough J, with whom Robert Goff LJ agreed, in R v Eastbourne Justices ex parte Kisten (1994) The Times December 22, CO/633/84, that: "No statute confers on magistrates the power to amend.  That they have such a power is beyond question; it derives from their inherent jurisdiction."  Wherever the power derives from, s 123 MCA will always need to be considered to determine whether an amendment is necessary.

Power to amend confined to Magistrates' Court

In Garfield v Maddocks, ante, an information was laid against Garfield alleging that he used threatening behaviour with intent to provoke a breach of the peace, contrary to s 5 Public Order Act 1936 ("POA").  Maddocks' application to amend the information by changing the allegation to one of threatening behaviour whereby a breach of the peace was likely to be occasioned was refused by the justices, but they went on to convict Garfield in relation to the original wording.  Upon Garfield's appeal, the Crown Court allowed Maddocks revised application to amend the information to allege "insulting behaviour whereby a breach of the peace was likely to be occasioned".  Garfield was subsequently convicted and appealed against the decision to amend.  Widgery LCJ said the Crown Court had no power to amend an information and that, even if the offence, as amended, was still within s 5 POA "the basis on which the prosecution was being put was changed".  The matter was remitted to the Crown Court to hear the appeal from the justices on the original information.

No power to substitute different defendant

The earliest reported case on an amendment of any kind in an information or summons appears to be City of Oxford Tramway Co v Sankey (1890) 54 JPN 564, ("Tramway").  An information laid against City of Oxford and District Tramway Co Limited had alleged that it allowed an excessive number of passengers to be carried, contrary to certain regulations.  The summons, however, was issued against the manager of the company.  The justices amended the summons to name the company as the defendant and it was convicted.  Upon the company's successful appeal, Pollock B said: "[T]he justices had no power to substitute the name of the company for that of the manager, as they are distinct parties altogether." 

Power to correct error in defendant's name

In R v Norkett ex parte Geach (1915) 139 LT Jo 316, the defendant's first name was wrongly stated in the summons.  The justices, being satisfied that the right defendant had received the summons and that he had not been prejudiced, allowed the defendant's name to be amended before the hearing and he was subsequently convicted.  The justices' decision to amend was upheld on appeal as the defendant had not been deceived or misled and was the person intended to be served with the summons.

In Dring v Mann (1948) 112 JP 270, an error in the defendant's name came to light during the hearing.  The justices' acquitted the defendant after their clerk wrongly advised them that the corollary of the decision in Geach, ante, was that an application to amend a name could not be made other than before the hearing.  Goddard LCJ said he could not understand how "any persons of common sense" could have arrived at the decision taken by the justices to dismiss the case on the basis that the wrong party had been named when the only difference in the first name was that "Rosa" had been spelt "Rose".  It was a "foolish point" for the defence to have taken. 

In Allan v Wiseman [1975] RTR 217, an information named the defendant as "Jeffrey Thomas Loach".  The defendant was convicted in his absence and "Jeffrey Thomas Allan" of the same age, address and occupation was arrested and brought before the court.  The justices amended the name of the defendant in the information from Loach to Allan.  On Allan's appeal it was held the justices were entitled to amend until they had finally concluded the matter by sentence, when they became functus officio.  Mais J said: "No injustice was done and there was never at any time any suggestion that in fact the defendant was not the individual concerned who had offended."

Whether wrong person made defendant or correct defendant misnamed

In Marco (Croydon) Ltd trading as A & J Bull Containers v Metropolitan Police [1984] RTR 24, ("Marco") a skip, owned by "Marco (Croydon) Ltd trading as A & J Bull Containers" bore the name "A & J Bull".  An information was laid against "AJ Bull Ltd" alleging that it had caused the skip to be on the road without lights, contrary to s 139(4) Highways Act 1980.  When the matter came before the justices the prosecution, realising that it had misnamed the defendant and being out of time to lay a fresh information in the correct name, applied to amend the name of the defendant in the summons to "Marco (Croydon) Ltd".  Counsel, appearing for "A & J Bull Ltd", which belonged to the same group of companies as Marco (Croydon) Ltd, unsuccessfully resisted the application.  The justices then allowed counsel a recess to ascertain if he was to be instructed to appear on behalf of Marco (Croydon) Ltd.  That company was then tried and convicted.  It then appealed contending that the justices were wrong to have allowed the amendment.  The justices stated they had made their decision on the basis that "where the wrong person has been summoned, amendment should not be allowed but where the prosecutor has correctly identified the defendant but merely misstated the name, amendment should be allowed."  Glidewell J accepted that the foregoing was a correct statement of the law but found that the justices had misapplied it.  He said: "On the face of it, it seems to me that the justices accepted that until he got further instructions, [counsel] was not instructed by the correct company."  As "initially, the wrong person was before the court", the justices were wrong to have allowed the amendment.

Corporate defendants

Whereas the authorities did not establish a legal principle that there could never be an amendment of the defendant's name when the defendant was a company, it appeared that amending a name from that of one company to another would inevitably entail the wrongful replacement of the defendant.

In R v Greater Manchester Justices ex parte Aldi GmbH & Co KG (1995) 159 JP 717 ("Aldi"), informations alleging the giving of misleading prices were laid against Aldi Stores Ltd, the wholesaler, when they should have been laid against Aldi GmbH & Co KG, the retailer.  Butler-Sloss LJ said: "The company, who would have to meet those allegations contained in the summonses, was not before the court.  It was not just a question of a misdescription of the same person.  They were separate companies with separate functions."

In Sainsbury's Supermarkets Ltd v HM Courts Service [2006] EWHC 1749 (Admin), (2006) 170 JP 690 ("Sainsbury"), an information laid against "J Sainsburys plc (trading as Sainsburys Supermarket Ltd" ("PLC") alleged they had sold a doughnut which failed to comply with food safety requirements, contrary to s 8 Food Safety Act 1990.  The district judge allowed the name of the defendant in the information and summons to be amended to "Sainsbury's Supermarkets Ltd" ("SSL").  McCombe J said: "The effect of the summons was that counsel appeared before the court for PLC and not for SSL … the proper defendant was not before the court.  The effect of the district judge's decision was … to prefer a charge against a new defendant outside the statutory time limit."

Clarification that the corporate cases did not impose an unwavering embargo on the amendment of a corporate name came in R (Essence Bars (London) Limited) v Wimbledon Magistrates' Court and Royal Borough of Kingston upon Thames [2016] EWCA Civ 63, (2017) 181 JP 297 ("Essence").  Essence was the premises licence holder for a nightclub.  That licence was revoked by the council.  In giving notice of appeal to the magistrates' court, Essence mistakenly gave the name of its holding company as the claimant.  Essence applied to correct its error by amendment relying on s 123 MCA which applies equally to complaints as it does to informations.  The application to amend was refused.  Essence sought judicial review arguing that although the notice of appeal had mistakenly named the complainant as its holding company, the notice also stated that the complainant was "the premises licence holder of the premises licence for the premises 'Essence'".  Beatson LJ said: "It has been recognised that in cases concerning corporate entities the distinction between misdescription and mistaken identity is particularly elusive, but there is no indication in the Divisional Court cases, in particular in Marco's case, that there is an automatic rule that a mistake concerning a corporate entity is a mistake of identity or that where a name and a description is used it is the former rather than the latter which identifies the parties in question.  … [The] District Judge's … conclusion that the mere fact that there were two corporate entities involved meant that there was a mistake of identity which could not be corrected pursuant to the powers in s 123 was … an error."

Continued in Part 2