No: 201104832/D1
Neutral Citation Number: [2012] EWCA Crim 720
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Thursday, 15th March 2012
 
B e f o r e: 
LORD JUSTICE JACKSON
MR JUSTICE IRWIN 
HIS HONOUR JUDGE ROOK QC 
(Sitting as a Judge of the CACD)
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R E G I N A 

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PF
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Mr I Hope appeared on behalf of the Applicant
Mr S Gaunt appeared on behalf of the Crown
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Judgment
1.	LORD JUSTICE JACKSON:  This judgment is in three parts, namely Part 1: Introduction; Part 2: The Facts; Part 3: The application for leave to appeal. 
Part 1: Introduction  
2.	This is an application for leave to appeal against conviction in which the main issue concerns the powers of the Crown Court upon a retrial. In this judgment we will refer to the Criminal Appeal Act 1968 as the "1968 Act". Section 7 of the 1968 Act provides:  
"Power to Order Retrial
(1) Where the Court of Appeal allow an appeal against conviction ... and it appears to the Court that the interests of justice so require, they may order the appellant to be retried. 
(2) A person shall not under this section be ordered to be retried for any offence other than— 
(a)the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in subsection (1) above; 
(b) an offence of which he could have been convicted at the original trial on an indictment for the first‑mentioned offence; or
(c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first‑mentioned offence."  
3.	We shall refer to the Criminal Justice Act 2003 as "the 2003 Act".  Section 100(1) of the 2003 Act provides:  
"(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if ‑‑
 (a) it is important explanatory evidence
 (b) it has substantial probative value in relation to a matter which -
 (i) is a matter in issue in the proceedings, and 
(ii) is of substantial importance in the context of the case as a whole; 
or
(c) all parties to the proceedings agree to the evidence being admissible."
4.	The Indictments Act 1915 permits joinder of counts in an indictment.  It also permits the amendment of indictments when this is necessary to meet the circumstances of the case.  The Criminal Procedure Rules 2011 deal with the powers of the court to permit joinder of counts in an indictment.  Rule 14.2(3) provides:  
"An indictment may contain more than one count if all the offences charged‑ 
(a) are founded on the same facts; or
 (b) form or are part of a series of offences of the same or a similar character." 
5.	Having identified the statutory provisions which are relevant to this application, we must now turn to the facts. 
Part 2: The Facts 
6.	For many years the applicant ran a coach company and he employed a number of teenage boys to clean the vehicles.  Three of the boys whom the applicant employed were SJ, JC and CS. The applicant was also in loco parentis towards SJ for some years while he was living with SJ's mother.
7.	In October 2007 JC made allegations of sexual abuse against the applicant.  He was duly interviewed by the police on DVD.  The police arrested and interviewed the applicant but did not take matters further at that stage.
8.	In May 2008 SJ made allegations of sexual abuse against the applicant.  The police again investigated.  On this occasion they decided to proceed.  The applicant was charged with committing a series of sexual offences against SJ and JC.  During June 2009 the applicant stood trial before Judge Coleman and a jury at Peterborough Crown Court sitting at Huntington on an indictment containing 15 counts.  Counts 1 to 13 related to sexual offences against SJ and counts 14 and 15 related to sexual offences against JC.  The jury convicted the applicant on ten of the counts relating to SJ, namely three offences of rape, two indecent assaults, two sexual assaults, two offences of sexual activity with a child and one offence of causing a child to engage in sexual activity.  The jury convicted the applicant on two counts of sexual assault against JC.  The jury was discharged from returning verdicts on three counts relating to SJ which were alternatives to the rape charges.
9.	In respect of two of the rape offences the judge sentenced the applicant to imprisonment for public protection, with a minimum term of 7 years, less time spent in custody on remand.  The judge imposed various shorter determinate sentences in respect of the other counts.
10.	On 16th July 2010 the Court of Appeal quashed the applicant's convictions on two grounds.  First, the judge had allowed certain evidence to be called which ought not to have gone before the jury.  Secondly, the judge's direction concerning the applicant's good character was unsatisfactory.  The Court of Appeal directed a retrial pursuant to section 7 of the 1968 Act.
11.	On 27th August 2010 the applicant was arraigned before His Honour Judge Coleman on the same 15 count indictment as before.  He pleaded not guilty to all counts.  In September 2010 CS made allegations of sexual abuse against the applicant.  He was duly interviewed by the police on DVD.  The police then arrested and interviewed the applicant about these new allegations.  In due course the applicant was charged on a second indictment with offences against CS.  The second indictment contained eight counts of sexual assault, one count of attempted rape and one count of attempted sexual activity with a child.
12.	The prosecution then applied for joinder of the two indictments.  The defence opposed that application on the ground that to add further counts to the first indictment would prejudice the applicant's position on his retrial.  This would be contrary to the guidance given in recent authorities concerning retrials ordered by the Court of Appeal.  This was the argument put by defence counsel before the court.
13.	In a ruling given on 2nd February 2011 the judge rejected the defence submissions and acceded to the prosecution application for joinder.  In the result therefore, the applicant faced an indictment containing 25 counts.  The first 13 counts related to SJ, counts 14 and 15 related to JC and counts 16 to 25 were the 10 new charges relating to CS.
14.	The applicant stood trial on the 25 count indictment before Judge Coleman and a jury at Milton Keynes Crown Court in July and August 2011.  The prosecution witnesses included of course the three complainants.  During the course of SJ's evidence defence counsel sought leave to put in evidence, some of the school records concerning SJ.  The records in question concerned SJ's misbehaviour at school on certain occasions.  The judge in the exercise of his discretion, under section 100 (1) of the 2003 Act refused that application.  The trial duly proceeded.  The applicant gave evidence denying all the allegations against him.  On 5th August 2011 the jury convicted the applicant on counts 2, 3, 4, 6, 7, 8, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23 and 24.  In respect of counts 4, 8 and 11 (the three rape charges) the judge imposed a sentence of imprisonment for public protection, with a minimum term of 7 years less time spent in custody on remand.  He imposed various shorter determinate sentences in respect of the other counts upon which the applicant had been convicted.
15.	The applicant was aggrieved by his convictions.  Accordingly he has applied for leave to appeal to the Court of Appeal. 
Part 3: The application for leave to appeal to the Court of Appeal.  
16.	The applicant applied to the Court of Appeal for leave to appeal against conviction on three grounds.  The first ground is that the judge erred in allowing joinder of a fresh indictment to the indictment upon which the Court of Appeal had ordered retrial.  The second ground is that the judge erred in not allowing the defence to cross‑examine the complainant, SJ, about allegations of violent misconduct as recorded in the school records.  The third ground is that in all the circumstances the applicant's convictions are unsafe.
17.	The first ground of appeal is the ground upon which the applicant principally relies and has been the subject of extensive argument this morning.  Both Mr Hope for the applicant and Miss Gaunt, for the prosecution, draw attention to R v Hemmings [2000] 1 WLR 661 and R v Booker [2011] 1 Cr App R 26 as the two principal authorities which are relevant.  We shall therefore begin by reviewing those decisions.
18.	In Hemmings the three defendants were convicted of conspiracy to steal amongst other matters.  The Court of Appeal quashed their conviction and ordered a retrial.  Before the retrial began both prosecution and defence agreed that the indictment should be amended by replacing the conspiracy charge with six counts of theft.  The defendants were convicted on those counts.  They appealed on the ground that section 7 of the 1968 Act prohibited the amendment to the indictment which had been made.  The Court of Appeal dismissed the defendant's appeal.  Clarke LJ, giving the judgment of the court, summarised the court's reasoning as follows at paragraph 25:  
"(1) Section 5(1) of the Act of 1915 is in wide terms. If it is construed by reference to its terms, the judge had power to permit the amendment. The indictment was defective within the meaning of section 5(1) for the same reason as it was defective at the first trial. At the first trial the amendment would have been 'necessary to meet the circumstances of the case' within the meaning of section 5(1) for the reasons given in paragraph 7 above. Further, it could not have been said that the amendment could not have been made without injustice.
 (2) This court could not have ordered a retrial under section 7(1) of the Act of 1968 on an indictment containing the theft offences because of the terms of section 7(2). However, there is nothing in section 7 or section 8 of the Act of 1968 which expressly affects the power of the trial judge at a trial (which logically must include a retrial) to permit the amendment of the indictment preferred pursuant to an order of this Court under section 7. Neither section is concerned with amendment. Section 7(2) is concerned with the order and section 8 with the subsequent procedure.
 (3) It is not implicit in section 7(2) that the trial judge's power to permit any amendment under section 5(1) of the Act of 1915 is proscribed. There is no reason why the trial judge should not permit an amendment under section 5(1) if the criteria in that section are satisfied.
 (4) In the instant case those criteria are satisfied because the amendment was 'necessary to meet the circumstances of the case' and, not only could the amendment be made without injustice, but the amendment served the interests of justice for the reasons given above.
 (5) The position would almost certainly have been different if the proposed amendment had put the defendants in a worse position than they had been in at the original trial. As we see it at present, it would not be permissible to permit the amendment of an indictment if to do so would put the defendant in a worse position than he had been after the original trial because any decision on an application to amend must respect the statutory purpose behind section 7 of the Act of 1968.
 (6) In this case the amendment was consistent with that statutory purpose and not inconsistent with it. In our judgment, section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the Act of 1915."
19.	In Booker the defendant and others were convicted of conspiracy to supply cocaine. The Court of Appeal quashed the defendant's conviction and ordered a retrial.  Before the retrial the prosecution secured an amendment to the indictment to join a new defendant, Mr Breskal, as an alleged co‑conspirator.  Mr Breskal's participation in the retrial turned out to be highly damaging to the defendant's case.  The defendant was convicted.  He appealed on the ground that the judge ought not to have allowed the indictment to be amended.  The Court of Appeal dismissed the defendant's appeal.  Pill LJ, delivering the judgment of the court summarised the court's reasoning as follows at paragraph 24:  
"(1) Section 7(2) of the 1968 Act deals with charging for different offences and specific situations in which that may arise. Hemmings was concerned specifically with the substitution of a different charge. 
 (2) A ban on adding a defendant to the indictment does not appear in section 7(2) and section 5(1) of the 1915 Act should not be applied as if it did. Section 7(2) does not proscribe the exercise of the trial judge's power to permit an amendment under section 5(1). 
 (3) There is no general principle that previously absent co‑conspirators cannot be tried with a conspirator subject to retrial. 
 (4) While we would accept that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken. A defendant may often be in a worse position at a retrial, amendment or not, because further evidence has emerged, or is better presented, and he cannot normally complain about that. 
 (5) We accept that there could be circumstances in which an application to join a defendant at a retrial could be an abuse of the process of the court. The requirement of fairness inherent in section 7(2) could spill over into consideration of a decision to add a defendant. By using the language it did, the court in Hemmings, particularly at reason (5) cited above, probably had broader considerations in mind than the change of charge specifically considered. If a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, the court would not permit it. 
 (6) Notwithstanding the absence of an explanation for the delay in charging Breskal, we are not prepared to conclude that the delay was contrived to make possible a joint trial or that the prosecution were abusing the process of the court when applying to join Breskal as a defendant at the retrial. In the event, it worked against the appellant but it is not established that the prosecution abusively took advantage of the situation to prejudice the appellant in circumstances where Breskal's change of position emerged only during the trial. 
 (7) In considering whether there has been an abuse, it is appropriate to have in mind the information available at the time the amendment was granted, which in this case did not include Breskal's dramatic change of position. Moreover, when that change did occur, no application to discharge the jury was made on behalf of the appellant. 
 (8) The judge retained a discretion in deciding whether to permit the amendment of the indictment. Fairness to a defendant being retried must be central to the decision. In our judgment, the judge was entitled to make the decision she did when she did."
20.	Mr Hope, on behalf of the applicant, places reliance on paragraph 25(5) of Hemmings.  He submits that the amendment permitted in this case did put the applicant in "a worse position than they had been in at the original trial."
21.	In argument the court suggested to Mr Hope that paragraph 25(5) of Hemmings should be construed as meaning that the prosecution cannot step up the charges on a retrial.  For example, if the charge at the original trial was section 20 wounding, the prosecution on the retrial could not amend that count to allege wounding contrary to section 18 of the Offences Against the Person Act 1861.  
22.	Mr Hope accepted that this would be prohibited by section 7 of the 1968 Act, but he submitted the restrictions imposed by that section are wider.  Mr Hope placed reliance in particular on paragraph 24(5) of Booker.  He drew particular attention to the sentence reading:  
"By using the language it did, the court in Hemmings, particularly at reason (5) cited above, probably had broader considerations in mind than the change of charge specifically considered."
23.	Mr Hope submitted that there is something special about a retrial.  The ability to embark upon a second trial after something has gone awry with the first trial is a benefit given to the prosecution by statute.  It is a benefit which the prosecution enjoy in the public interest.  Nevertheless, the prosecution should be scrupulous to act in a way which is fair and which does not put the defendant at a disadvantage because he is being tried for a second time in respect of the offence or offences for which his conviction has been quashed.
24.	Miss Gaunt, for the prosecution, accepts that the prosecution must ensure that a defendant is treated fairly at a retrial.  However, she submits that nothing in the Act or in the authorities prohibits the joinder of additional counts to the original indictment if such joinder becomes appropriate.  She points out that in the present case the applicant was being retried on precisely the same 15 counts that he faced at the original trial.  What has happened is not that those charges have changed or been made more serious but merely that other charges, not part of the retrial, have been added.
25.	In our view, the issue raised by the first ground of appeal turns upon the interpretation of section 7 of the 1968 Act.  That section limits the offences for which a defendant can be retried following the quashing of his original conviction.  Section 7 prevents the judge at the retrial replacing a less serious charge with a more serious charge.
26.	Section 7 is silent on the question whether other defendants or other charges can be added to the indictment at the retrial.  The section does not expressly prohibit such a course.  
27.	In Booker the Court of Appeal held that it was permissible to amend the indictment before the start of the retrial by adding another defendant, unless the amendment involved some manipulation or abuse of process by the prosecution.  It is significant that in paragraph 24(4) of Booker Pill LJ said:  
"While we would accept that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken."
28.	In our view a similar approach should be adopted in cases where the prosecution at a retrial seeks to add further counts to the indictment.  If there is manipulation of the process or abuse of process by the prosecution, then the judge on the retrial will not allow the proposed amendment.  If however the application to add further counts is a proper one, because further evidence has come to light since the original trial, then in the view of this court the judge is not precluded either by section 7 of the 1968 Act or by any principle of law from allowing the amendment.
29.	In the present case, as the applicant's counsel concedes, the requirements of rule 14.2(3) of the Criminal Procedure Rules are met.  The alleged offences against CS "form or are part of a series of offences of the same or a similar character."  This was therefore a perfectly proper and reasonable application for joinder of additional counts on its merits and in its own right.  Furthermore, CS's evidence of abuse was not available to the prosecution at the original trial, so those counts could not possibly have formed part of the original indictment.  In our view, the judge's decision to allow amendment of the indictment by the addition of the further counts cannot be faulted.  We would therefore reject the first proposed ground of appeal. 
30.	We turn now to the second ground.  This was developed much more briefly by Mr Hope and we can deal with it briefly as well.  We have been through the school logs which defence counsel wished to put in cross‑examination.  As Mr Hope very fairly conceded, the incidents relied upon were relatively minor acts of misbehaviour at school although involving violence.  Only six of the incidents occurred during the indictment period.  It should also be noted that some of the entries in the school records indicate that SJ was usually well behaved at school.
31.	Mr Hope submits that the main relevance of the entries in the school records is that they show SJ standing up to adult authority.  Yet, says Mr Hope, he was put before the jury as someone who could not stand up to the applicant.  
32.	We do not see force in this line of argument.  Only one of the six incidents which occurred during the period covered by the indictment involved standing up to adult authority.  That incident is not out of character with SJ's account of matters as put before the jury.  That account of matters includes two occasions when SJ forcefully stood up to the applicant.
33.	The judge dealt with the defence application to put in the school records as an exercise of the court's discretion under section 100 of the 2003 Act.  The judge concluded that none of the tests contained in section 100 (1) were satisfied.  The evidence was not important explanatory evidence.  The evidence did not have substantial probative value in relation to a matter which was in issue in the proceedings and the evidence waqs not of such substantial importance in the context of the case as a whole that it ought to go before the jury.
34.	In the course of his ruling the judge took into account all relevant factors.  Mr Hope does not suggest that there was any relevant factor which the judge overlooked, nor does he suggest that the judge placed reliance on any factor which was irrelevant.  In our view the judge made an entirely sensible case management decision for reasons which he set out with care.  This court should not interfere.  We therefore reject the second ground of appeal as put forward in the application.
35.	The third proposed ground of appeal is that the applicant's conviction is unsafe.  That ground is parasitic on the first two and is not based upon any additional arguments.  We can see no possible basis for saying that the applicant's conviction is unsafe.
36.	The result, therefore, is that this application for leave to appeal must be refused.  Although we are dealing with a leave application, not an appeal, we have found it necessary to decide a point of law which may be of occasional interest in other cases.  We therefore direct that this judgment may be cited on future occasions if counsel so wish.  
37.