Tuesday Law Report: Second trial was an abuse of process

WHERE THE prosecution had been allowed to amend an indictment after the close of their case in circumstances where a submission of no case to answer on the original indictment would have succeeded, a retrial, ordered because evidence inadmissible on the amended indictment had already been heard by the jury, was an abuse of process and should have been halted.

The Court of Appeal allowed the appeals of Luke Anthony Piggott and Jeffrey Simon Litwin against their convictions of conspiracy to steal, and Litwin's conviction of nine counts of handling stolen goods.

The appellants and their co-accused were originally charged in an indictment containing a single count of conspiracy to steal. At the close of the prosecution case a submission of no case to answer was made on behalf of the defendants. The judge directed a not guilty verdict in respect of the two co-accused, but allowed amendments to the indictment in respect of the appellants, which amounted to the reinstatement of counts which had previously been withdrawn.

The judge discharged the jury and ordered a retrial, because evidence which would be inadmissible in the case on the amended indictment had already been adduced. He approached the matter by reference to section 5(1) of the Indictments Act 1915, and also placed reliance on section 5(5) of the Act.

The appellants were re- arraigned on the amended indictment and were ultimately convicted of conspiracy to steal. Litwin was also convicted of nine counts of handling stolen goods. The appellants appealed against their convictions, submitting that it was unfair that the Crown had been able to conduct their case to its close on one basis, and then had been allowed to amend it at such a late stage.

Keith Hotten (Registrar of Criminal Appeals) for Piggott; Zoe Smith (Registrar of Criminal Appeals) for Litwin; Justin Wigoder (Crown Prosecution Service) for the Crown.

Lord Justice Waller said that section 5(5) of the Indictments Act 1915 contemplated amendments only at a very early stage of proceedings at which a decision might be taken to order a separate trial or to postpone a trial which had not in effect started.

Whilst postponement or discharge at a very early stage might not be unfair, it was difficult to contemplate that postponement or discharge of a jury could take place at the end of the Crown's case without being so.

To allow amendments at the stage where they had been allowed in the present case after a trial lasting 10 days, and which could only be proceeded with by ordering a retrial which would traverse the same ground as the first trial, but on counts which the appellants were entitled to think had been withdrawn, had caused an injustice to the appellants.

Although there was a material distinction between the situation in the instant case and that in a case where a plea of either autrefois convict or autrefois acquit was applicable, if the submission of no case to answer had not been made in the present case and the matter had been allowed to be decided by the jury, the jury would have had to acquit the appellants on the conspiracy as it was originally charged.

In that instance, on any view, an attempt by the Crown to resurrect substantive offences and even narrower conspiracies would have been bound to fail. No one would suggest that if the amendments had not been sought, and if the defence had been entitled to succeed on a submission of no case to answer, that the Crown would have been entitled to have the jury discharged instead of a verdict of not guilty being entered, simply so that they could mount a second case.

The judge in the second trial had been entitled to conclude that that trial was an abuse of process, and should therefore have exercised his discretion to halt it. In those circumstances, having concluded that the second trial should never have taken place, the court was bound to conclude also that the convictions were unsafe and to quash them.