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The Information in the Information.

This article looks at what should be contained within an information if it is to comply with what are now the Criminal Procedure Rules 2010. The new provisions are set out in square brackets where applicable. First published in the Justice of the Peace (1998) 162 JPN 276.

Rule 100(1) MCR - the information

The legislative requirement for the content of an information is governed by r 100(1) of the Magistrates' Courts Rules 1981 ("MCR") which states that:

"Every information, summons, warrant or other document laid, issued or made for the purposes of, or in connection with, any proceedings before a magistrates' court for an offence shall be sufficient if it describes the specific offence with which the accused is charged, or of which he is convicted, in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the elements of the offence, and give such particulars as may be necessary for giving reasonable information of the nature of the charge".

Rule 100 MCR uses such broad language that prosecutors, in drafting informations, have a fair degree of latitude in determining what particulars should be included and in what degree of detail.  Nonetheless there is no room for complacency and an inadequately worded information could render it void.

 [Note: The current equivalent of the former r 100(1) MCR is r 7.3 of the Criminal Procedure Rules 2010 which provides that:

"(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."]

R v Birmingham Justices ex parte Matthews

Although heard in 1984, a transcript of R v Birmingham Justices ex parte Matthews (1996) 104 ITSA TSR11 24, was not reported until 12 years later.  That case involved consideration of the sufficiency of informations laid under s 14 of the Trade Descriptions Act 1968 ("TDA").  The prosecution had laid a total of 94 informations against a travel company, Sunny Tours Ltd, two of its directors and a manager.  The defendants applied for judicial review to quash the informations as being deficient under r 100 MCR.  S 14(1) TDA provides:

"It shall be an offence for any person in the course of any trade or business -

(a) to make a statement which he knows to be false; or

(b) recklessly to make a statement which is false;

as to any of the following matters, that is to say, -

(i) the provision in the course of any trade or business of any services, accommodation or facilities;

(ii) the nature of any services, accommodation or facilities provided in the course of any trade or business;

(iii) the time at which, manner in which or persons by whom any services, accommodation or facilities are so provided;

(iv) the examination, approval or evaluation by any person of any services, accommodation or facilities so provided; or

(v) the location or amenities of any accommodation so provided."

In respect of some of the informations the criticism was that they did not particularise the statement said to be false or state why it was said to be false, whereas in respect of others they did not identify to whom the false statement was alleged to have been made.  In relation to the first deficiency Stephen Brown LJ said: "It is not sufficient that there is particularity as to the date, place and identity of the complaint.  What is missing are the particulars of the statement and of the way in which it alleged the statement was false.  In my judgment, this is not something which can be cured by further and better particulars.  None has been given.  There has been no application to supplement the charge by any amendment.  One is simply left with a general allegation which is quite unspecific as to essential matters".  The proposition that all "essential" elements of the offence must be specified in the information is a fair interpretation of r 100 MCR. It leads to the need to consider what the essential ingredients of any particular offence are.

When a s 14 TDA statement is made

One matter which Stephen Brown LJ thought to be an essential ingredient of an offence under s 14 TDA was the naming of the person to whom the alleged false statement was made.  It was conceded that failing to stipulate to whom the statement was made rendered the information bad, "having regard to the decision of this court in the case of Wings Ltd v Ellis [1984] 1 WLR 731.  That case sets out, the requirements for an offence under section 14, and one of the matters which is made plain is that a charge cannot be brought unless there is an allegation that the statement has been made to an identifiable person". Only 16 days after Stephen Brown LJ delivered his judgment in the Birmingham Justices case, the House of Lords gave judgment in the appeal against the decision of the Divisional Court in Wings Ltd v Ellis upon which he had relied. It should be noted that in Wings Ltd v Ellis the Divisional Court had itself relied upon a proposition expounded by the Court of Appeal in R v Thomson Holidays Ltd [1974] QB 592.  The House of Lords, in Wings Ltd v Ellis [1985] 1 AC 272, found that proposition to have been wrong.  Lord Brandon of Oakbrook said:

"In so far as R v Thomson Holidays Ltd, purports to decide, as a general proposition of law applicable to all cases, that a statement is only made, for the purpose of section 14 of the Act of 1968, when it is communicated to someone, that must be regarded as wrong.  A statement may well be made in circumstances when, if it is oral, no one immediately hears it or, if it is written, no one immediately reads it.  That does not mean, however, that the statement has not been made for the purposes of section 14 if, it is intended, that after it has been made once, a large number of copies of it will be recorded or printed, and those copies thereafter put and kept in circulation, with the intention or, if not with the intention, with the natural and probable consequence, that the statement will be heard or read by a particular person or body of persons, or by a substantial section of the public at large. In the present case, I regard the false statement about air conditioning contained in the respondents' brochures as having been a continuing false statement, that is to say a false statement which continued to be made so long as such brochures remained in circulation without effective correction.  I should regard a statement made in an advertisement exhibited on a street hoarding in the same way".

Lord Scarman said "it was unnecessary for the Court of Appeal to hold that communication was of the essence".  It follows that within days of the Birmingham Justices case, deciding that it was essential for a s 14 information to specify to whom the false statement was made, the House of Lords effectively said that there was no such requirement; at least not in the case of a statement in a publication such as a holiday brochure where it is made to the world at large rather than to a specific individual.

Jevons v Cosmosair

The adequacy of a s 14 TDA information again fell to be decided in Jevons v Cosmosair plc (1998) 162 JP 68.  The information alleged that the respondent had on a stated date, at a stated place in the course of business made "by means of a confirmation and account document to a Mr J Ambrose a statement which it knew to be false as to the time at which a service was to be provided namely that a Monarch Airlines flight to Mohan was to depart on May 16, 1994 at 14.55 hours contrary to s 14(1) of the Trade Descriptions Act 1968"  The justices declared the information to be void and, on the prosecutors appeal, the respondent maintained that the information was bad because it did not identify the person to whom it was alleged the statement was made and secondly because it did not sufficiently indicate the statement which was alleged to be false or the basis for the allegation that it was false.  It was conceded that "Mohan" could be corrected to read "Mahon" as this was an obvious misspelling.

The contention that the information was bad for not naming the person to whom the statement was made was remarkable given the decision of the House of Lords in Wings Ltd v Ellis and the fact that the information, in any event, did name such person.  Mantell J found that it was "perfectly plain that it is being alleged that the statement was addressed to Mr Ambrose. ... It would be straining the language of the information to reach any other conclusion".  Whereas the court's attention was drawn to the Birmingham Justices case it does not appear that the court considered the effect on that case of the House of Lords decision in Wings Ltd v Ellis.  It follows that Jevons v Cosmosair should not be regarded as an authority for the proposition that s 14 informations should specify to whom the alleged false statement was made.

Mantell J also rejected the submission that the nature of the false statement or the falsity were not sufficiently clear.  "It is made clear that what is alleged to be false is the information that the airline flight was to depart for Mahon on May 16 at a certain time.  The case, which was to be presented to the magistrates ... was that at the relevant time, in fact, no arrangement had been made for the flight to depart on that date at that particular time. ... I do not consider that the information contained in the charge was inadequate or defective, but even if it had been it is eminently capable of amendment simply by adding words to show that the time of departure was at the earlier hour".

S 123 MCA amendments

Although s 123 of the Magistrates' Courts Act 1980 ("MCA"), which evolved from a very similar provision in the Summary Jurisdiction Act 1848, does not expressly enable the prosecution to seek the amendment of an information, such a facility has for many years been seen as an unwritten adjunct.  S 123(1) MCA provides that:

"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".    

The immediate precursor of s 123(1) MCA was s 100(1) of the Magistrates' Courts Act 1952 which was in identical terms. In relation to that provision, Lord Widgery CJ said, in Garfield v Maddocks [1974] 1 QB 7; (1973) 137 JP 461, that:

"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) [see now s 123(2) MCA] whereby an adjournment can be ordered in the interests of the defence if the amendment requires him to seek an adjournment".

Mantell J's judgment in Jevons v Cosmosair reminds us that if an information is "inadequate or defective" then s 123 "allows for appropriate amendments to be made".  In this case all the necessary information was in the information but "if there was any suggestion that the matter was not entirely clear, then the magistrates were entitled to allow such amendments as would put the matter beyond doubt.  They were certainly not entitled to hold that the information was bad, on its face, and therefore void".

A third objection which was taken by the respondent in Jevons v Cosmosair was that the date of offence alleged in the information was wrong and that this in itself justified the justices in holding the information to be void.  On that point 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".

Something which cannot be amended is the name of the defendant if such an amendment would have the effect of substituting one defendant for another.  Hence, in City of Oxford Tramway Co v Sankey (1890)  54 JPN 564, the name of a company could not be substituted for that of its manager and, in R v Greater Manchester Justices ex p Aldi GMBH & Co KG (1995) 159 JP 717, the name of one company could not be amended to the name of its sister company.  In Allan v Wiseman [1975] RTR 217, however, an amendment to the defendants name could be made because it was the same person but the wrong name.

R 100(2) MCR - citing the provision breached

One ingredient of a properly worded information is specifically provided for by r 100(2) MCR, so that, "if the offence charged is one created by or under any Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order, regulation, byelaw or other instrument creating the offence".

An error in the citation of the statutory provision will, if it is left unamended, make the information bad.  Amendment should in such situations be applied for "under" s 123 MCA. In R v Eastbourne Justices ex parte Kisten (1984) The Times December 22, an amendment of the section cited in the information was allowed, even after a guilty plea had been entered, the defendant not having been misled thereby.

In R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd [1976] 2 All ER 611; (1976) 140 JP 440, the prosecutor was permitted to amend the information at the end of his case to allege a different offence, albeit under the same section as the one charged, and even though it was outside the statutory time period for laying a fresh information.  The defence, however, had not been misled by the information as a notice of facts from which the prosecution case did not depart had been served with the summons.  The amended information alleged the using of a motor vehicle rather than permitting its use.  On appeal, May J said that the magistrates' "power to permit the amendment of an information ... must be exercised judicially; it must be exercised so as to do justice between the parties.  But where it can be so exercised, where an information can be amended, even to allege a different offence, so that no injustice is done to the defence, I ... see no reason why the justices should not so exercise it even though ... the amendment is allowed after the expiry of the six months' period from the commission of the alleged offence".  Widgery LCJ added: "I would not wish prosecuting authorities to think that any licence is available to them to disregard the rules and hope that their troubles may be corrected by amendment at the hearing.  On the other hand, in this instance the facts of the two competing offences are really identical, and it seems to me that the justices could hardly have reasonably come to any conclusion other than that the amendment here should be permitted".

The Newcastle case was followed in R v Scunthorpe Justices, Ex parte M and Another (1998) The Times March 10, where Dyson J confirmed that the purpose of the six month time limit in s 127 MCA was to ensure that summary offences were dealt with as soon as reasonably practicable after their alleged commission.  An information could, however, be amended after the six month period had expired, even to allege a different offence or offences, provided that the new offence(s) alleged the "same misdoing" as the original and justice could be served by the amendment.  The "same misdoing" meant that the "new offence should arise out of the same, or substantially the same, facts as gave rise to the original offence".  If the proposed amendment was to a more serious charge that "should weigh heavily, perhaps conclusively" against allowing the amendment outside the six month time limit.  If allowing the amendment would give rise to an adjournment then that might be a reason to disallow it, out of time, having regard to the purpose of s 127.  As the amended charge would arise substantially out of the same facts as the original the need for such an adjournment would be rare.

The 1997 Edition of Stone's Justices' Manual in a footnote at paragraph 1-6043 says: "The omission to state the section, or to state it incorrectly, may be fatal".  The main authority given for this proposition is Atterton v Browne [1945] KB 122; (1945) 109 JP 25 and Hunter v Coombs [1962] 1 All ER 904; (1993) 126 JP 300 is also cited.  Whilst what Stone says is literally correct, it rather gives the (wrong) impression that, in the authorities quoted, the failure to state the section, either correctly or at all, was the only deficiency in the informations concerned.  In fact it seems highly unlikely that an omission to state the section of the Act under which the prosecution is brought would, without more, be fatal.  Atterton v Browne concerned a prosecution brought under the old Food and Drugs Act 1938.  As is the case with most consumer protection legislation, including the current Food Safety Act 1990, an offence committed by one person can be charged against another as being due to that other's act or default, whereby he is also guilty of the offence.  The primary offence in this case was under s 24 of the 1938 Act whereas the "act or default" provision was contained in s 83(3).  The information not only failed to cite s 83(3), but also, and far worse, made no mention of an allegation of "act or default" hence it appeared as though the defendant was being accused of the primary s 24 offence.  Viscount Caldercote CJ said: "I cannot see why ... it should not be incumbent upon the prosecution to state in the summons the factors or the material legislation which constitute the offence charged".  Humphreys J added that: "A reference to s 83(3) ... would have been desirable in such form as would make it clear to the respondent that the real charge against her was that it was due to the act or default of herself that somebody else sold milk which had added water.  That is the real test, and that would enable the person charged to prepare his defence to the charge".  The wording of the information was "so defective and so inaccurate as to be positively misleading" and in those circumstances the justices could not be said to have been wrong in dismissing the information.  In Hunter v Coombs the Divisional Court quashed a conviction as a result of a bad information.  The appellant had been convicted of an offence of driving without "L" plates.  The information failed to cite the section which made this an offence and neither did it refer to "L" plates.  Fenton Atkinson J did not consider the information to be as misleading as that in Atterton v Browne and thought that it was capable of amendment.  The prosecution, however, had not sought an amendment.  "The prosecution had been put on notice; the point had been raised on behalf of the appellant at the very outset of the proceedings; the prosecution had the chance to set their house in order, but they did not do so".

It was submitted in Jones v Thomas (John Barrie) [1987] RTR 11, that an information was defective which alleged an offence as "contrary to section 6(1) of the Road Traffic Act 1972 as amended".  The prosecution declined to amend the information to state that s 6 had been substituted by the Transport Act 1981 and the justices dismissed the information.  On appeal it was held that the information, as it stood, complied with r 100 MCR as it was incapable of misleading either laymen or lawyers.

[Note: The current equivalent of the former r 100(2) MCR is paragraph (1)(a)(ii) of r 7.3 of the Criminal Procedure Rules 2010, ante, which simply provides that: "An allegation of an offence in an information or charge must contain  ...  a statement of the offence that ... identifies any legislation that creates it ..."]

R 4(3) MCR - citing a negative

There is one matter which is expressly excluded from being an essential ingredient of an information.  R 4(3) MCR states that "it shall not be necessary in an information ... to specify or negative an exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence ... contained in the enactment creating the offence".  This is entirely consistent with s 101 MCA which determines that "the burden of proving the exception, exemption, proviso, excuse or qualification shall be on [the defendant]".

[Note: Although r 4(3) MCR was preserved in the original version of the Criminal Procedure Rules 1975, r 7 thereof (as amended with effect from 6th October 2009) no longer expressly provides that "it shall not be necessary" for an information to "negative any matter upon which the accused may rely".  This omission, however, does not alter the position and was no doubt made to simplify what is required rather than stating what is not.  Notably, s 101 MCA continues to provide that: "Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence or matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden or proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification."

Furthermore the common law position as it can be found in cases such as the House of Lords decision in R v Hunt [1987] 1 All ER, prevail.]

R 12 MCR - duplicity

An information will be bad for duplicity if it alleges more than one offence.  R 12(1) MCR prohibits a magistrates' court from hearing an information which charges more than one offence.  R 12(3) provides that if "it appears to the court at any stage in the trial ... that the information charges more than one offence, the court shall call upon the prosecutor to elect on which offence he desires the court to proceed, whereupon the offence or offences on which the prosecutor does not wish to proceed shall be struck out of the information; and the court shall then proceed to try that information afresh".  If the prosecutor, having been called upon to make such an election, fails to do so then the information must be dismissed (r 12(4)).  A prosecutor who only wants to allege one offence, but is in doubt about which is the most likely to succeed, can always lay separate informations as alternatives. Such a course was advised by the Divisional Court in Ross Hillman Ltd v Bond [1974] QB 435.

There is a wealth of case law turning on the question of whether particular words used in various informations allege just one offence or more.  An information which, for example, alleges the theft of various items from a shop may appear to be alleging more than offence but that will not be so if the theft was all one activity.  Indeed in Heaton v Costello (1984) 148 JP 688 a single information alleged the theft of cider by label changing and theft of clothing by taking i.e. not just the theft of more than one item but two different forms of theft. Goff LJ said :  "The appropriate test to apply in these cases is this: can the various acts properly and fairly be described, having regard to all the circumstances of the case, as forming part of one activity".  He said that the justices had confused "the question whether there were two acts of theft, viz. the separate theft of the cider and the theft of the trousers and cardigan, with the question whether there was one activity embracing both acts of theft".  Goff LJ went on to suggest that:  "In a particular case, if a separate defence is going to be run in respect of two acts which form part of one activity and are the subject of one count, the defence may wish to make a submission at the commencement of the case, asking that the count be split so that there are two separate counts in respect of the two acts; and in such circumstances the prosecution might well consent to that course being taken".

[Note: Rule 12 MCR, which prohibited the inclusion of more than one offence in an information, was preserved in the original formulation of r 7.3 of the CPR 2005, but r 7.3(1) no longer provides that it is the "information" which must describe "the offence". As from 6th October 2008 the requirement has been that the "allegation" of the offence within the information must describe "the offence". It is therefore now permissible for an information to charge more than offence so long as those offences are described within separate allegations.

See the notes to Euro Foods Group v Cumbria County Council.

R 7.3(2) CPR now provides:

"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 words "a course of conduct" in r 7.3(2) capture the common law concept of a single activity which may encompass more than one act.]

R v Piper

In R v Piper (1996) 160 JP 116 the prosecution had the task of framing an indictment (and prior to that an information) alleging an offence under s 14 TDA where Mr Piper had used the logo of the Guild of Master craftsmen on his business notepaper when he was not a member of that Guild.  In so doing, they included the wording of s 14(1)(i), namely "as to the provision in the course of trade or business of any services".  In the Court of Appeal, Roch LJ considered that the circumstances of the offence fell more directly under s 14(1)(iii), namely "... persons by whom any services ... are so provided".  Nonetheless the statement (i.e. the logo) was false and the conviction of the Crown Court was upheld.  Roch LJ, however, offered advice for those drafting indictments or, by implication, informations:

"We consider that it would be advisable in the future ... for the statement of offence to be confined to identifying whether the offence charged is the offence of making a statement which the defendant knows to be false under s 14(1)(a) or the offence of making a statement which is false recklessly under s 14(1)(b).   The particulars of the offence should be confined to identifying the statement on which the prosecution relies and the way in which the prosecution will say that statement is false.  In the present case it would have sufficed had the particulars of offence been confined to the assertion that the appellant had recklessly made a statement which was false, namely that he was a member of the Guild of Master Craftsmen when he was not.

The sub-paragraphs in subsection (1) of s 14 overlap and clearly there will be cases where the facts potentially fall within more than one of those sub-paragraphs.  The complications which arose in the present case can be avoided if the statement of offence and the particulars of offence are confined in the way we suggest.  If the defence are embarrassed in any case by insufficient knowledge of the allegation the defendant has to meet, then further particulars of the offence can be sought, and will be given or alternatively ordered if there is anything in the submission that the defendant does not know the case he has to meet".

Just as Roch J held that it was not necessary for an information to cite the particular sub-paragraph of s 14 TDA relied upon (indeed he positively discouraged this) so, it is submitted, it is not necessary for an information, in the case of an offence alleged against s 1 TDA, to particularise the type of trade description alleged, in terms of the sub-paragraphs in subsection (1) of s 2 TDA.  There is in fact more likely to be an overlap between those sub-paragraphs than the ones in s 14.  It is notable that there have been a plethora of reported appeal cases concerned with s 1 TDA with apparently no suggestion in any of them that a reference to s 2 was required.

It is apparent from R v Piper that too much detail in an information can lead to problems, just as too little can.  Whereas Roch LJ suggested that the information should quote the statement said to be false and then go on to state in what respect it is false, the latter will only be necessary where the statement is ambiguous.  Thus in Jevons v Cosmosair plc, where the statement alleged to be false was that an airline flight was to depart at a specified time, it would not really have added anything to go on to say that the statement was false because the airline flight did not depart at the specified time.  The alleged false statement may, however, be one which is capable of being false in more than one respect.  If the statement was "Hotel situated within 400 yards of the sheltered, sandy beach" the falsity could be that the beach was more than 400 yards away or that it was not sheltered or not sandy or all or two of these things.  The information would be clear if, after quoting the false statement it said "in that the Hotel was more than 400 yards from the beach".  It would also be clear if the false statement was pruned to highlight its falsity e.g. "Hotel situated within 400 yards of the ... beach".  This latter course, however, might still in some cases admit a latent ambiguity. In the example just given the falsity is probably in relation to the distance but it could be as to whether the "beach" was a genuine beach.  In Thomson Travel Ltd v Roberts (1984) 148 JP 666, the so called "beach" was man made.

A good information is one which is not unduly cluttered by surplusage but which nonetheless is sufficiently detailed to make it clear to the defendant what the allegation is which he has to meet.

VICTOR SMITH

See also Duplicity Under the Criminal Procedure Rules.

 

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