Regina v Scunthorpe Justices ex parte McPhee and Gallagher: Admn 24 Feb 1998

The defendant faced a charge of robbery. More than six months after the alleged offence the prosecution sought to add alternate charges including one of common assault. The magistrates declined jurisdiction on the ground that, more than six months having elapsed since the date of the offence, new proceedings for the summary offence of common assault were time barred and the differences between the offences were too great for the original charge to be amended.
Held: The magistrates’ refusal was quashed. ‘In my judgment, the following principles can be derived from the authorities: (1) The purpose of the six-month time-limit imposed by s.127 of the 1980 Act is to ensure that summary offences are charged and tried as soon as reasonably practicable after their alleged commission. (2) Where an information has been laid within the six-month period it can be amended after the expiry of that period. (3) An information can be amended after the expiry of the six-month period, even to allege a different offence or different offences provided that — (i) the different offence or offences allege the ‘same misdoing’ as the original offence; and (ii) the amendment can be made in the interests of justice.
These two conditions require a little elucidation. The phrase ‘same misdoing’ appears in the judgment of McCullough J in Simpson v Roberts. In my view it should not be construed too narrowly. I understand it to mean that the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence … Once they are satisfied that the amended offence or offences arise out of the same or substantially the same facts as the original offence, the justices must go on to consider whether it is in the interests of justice to allow the amendment. In exercising their discretion the justices should pay particular regard to the interests of the defendant. If an amendment will result in a defendant facing a significantly more serious charge, that should weigh heavily — perhaps conclusively — against allowing the amendment after the six-month time-limit has expired. There may also be cases where a late application to amend by the prosecution would give rise to an application for an adjournment. If the justices were to conclude that an amendment to the information would necessitate an adjournment, that might well be a good reason for refusing an application to amend in view of the basic purpose of the six-month time limit imposed by s.127 of the 1980 Act. The need for an adjournment on that ground ought, however, to be rare since the amended offence will arise out of the same or substantially the same facts as the original offence.’ An information could be amended out of the six months time limit if arising from substantially same facts and allegations as original charge.


Lord Bingham CJ and Dyson J


Times 10-Mar-1998, [1998] EWHC Admin 228, [1998] 162 JP 635




Magistrates Courts Act 1980 127

Cited by:

CitedDirector of Public Prosecutions, Regina (on the Application of) v Everest Admn 24-May-2005
The defendant had lit a bonfire. The smoke left his garden and blew across the road. An accident occurred. The prosecution appealed dismissal of a charge against him on the ground that they sought an amended charge after closure of their case and it . .
CitedAshton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
CitedDepartment for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
CitedWilliams v Director of Public Prosecutions Admn 24-Jul-2009
Thomas LJ said: ‘When the magistrates were faced with the application for an amendment, the law was clear and remains clear. The principles are set out in Section 123 and 127 of the Magistrates’ Court Act [1980] and in the single decision of this . .
CitedCrann v Crown Prosecution Service Admn 27-Feb-2013
The defendant appealed by case stated against an order allowing the amendment of an information against him. He was first accused of failing to provide a specimen of breath for testing after being stopped and suspected of driving with excess . .
Lists of cited by and citing cases may be incomplete.


Updated: 27 May 2022; Ref: scu.138349