Court of Appeal
| Published date | 01 January 1969 |
| Date | 01 January 1969 |
| DOI | 10.1177/002201836903300104 |
| Subject Matter | Article |
Court
of
Appeal
AMENDMENT OF
INDICTMENT
R. v. Hall
THE indictment on which the defendant was charged in R. fl. Hall
(1968, 3 W.L.R. 359) originally charged him with breaking
and
entering the Dulwich Art Gallery
and
stealing eight paintings and
in the alternative with receiving three of them.
On
the depositions,
there was evidence that the three paintings
had
been in his physical
possession and
that
his fingerprint was on paper surrounding the
other five when they were recovered.
The
receiving court was
amended at the trial to the receiving of eight paintings and to this
amended count the defendant pleaded guilty and was sentenced to
five years' imprisonment. Upon appeal, he argued that the receiving
count was wrongly amended, since the power to amend is limited to
amending a defective indictment, whereas the receiving count, as
originally framed to cover three paintings, was not in any way
defective. He argued, therefore,
that
the so-called amendment
amounted to the adding of a new count to the indictment. The Court
of Appeal decided against him on both points. Lord Parker
C.].
repeated what he
had
said in R. v.
Martin
(1962,1
Q:B.
221): "An
indictment which charges offences which are not disclosed in the
depositions and fails to charge an offence which is, lacks the most
essential quality of an indictment".
The
Court reiterated that an
indictment which fails to charge an offence disclosed by the depo-
sitions is defective. Such an indictment can therefore be amended
under s.5(1) of the Indictments Act 1915. Lord Parker
C.].
also
reiterated the further opinion expressed in R. v.
Martin
(supra)
that
there is no objection in principle to adding a new count to the
indictment before arraignment provided it can be done without
injustice.
In
Hall's case it could not be suggested
that
any injustice
had occurred as a result of the amendment and the Court therefore
applied the
dicta
already enunciated in R. v.
Martin.
As, in
Hall's
case, there was evidence on the depositions which would support the
amended count, the Court held the amendment to be proper.
21
22
THE
JOURNAL
OF
CRIMINAL
LAW
SUSPENDED SENTENCES
R. v.
Lamb
R. v.
Flanders
The
somewhat tangled statutory provisions relating to suspended
sentences have recently been considered by the Court of Appeal
in two cases: R. v.
Lamb
(1968, 3 W.L.R. 833; 19683
All
E.R. 206);
and
R. v.
Flanders
(19683 W.L.R. 873; 1968
All
E.R. 513).
In
Lamb's
case, the appellant, ayouth of nineteen, was convicted
of
factory
breaking
and
larceny and, on being sent to quarter sessions for
sentence was there sentenced to six months' imprisonment. By virtue
of s.39(3)
of
the Criminal Justice Act, 1967, this sentence was
suspended for three years, since
that
sub-section is in the mandatory
terms that where a court passes a sentence of imprisonment for a
term of not less
than
six months in respect
of
one offence, it
shall
make an order suspending the sentence. A month later, however,
Lamb
pleaded guilty in another magistrate's court to shop-breaking
and
larceny
and
was sentenced to six months' imprisonment. He was
then brought back to quarter sessions where
it
was ordered that the
original sentence should take effect
and
that
the six months' im-
prisonment on
that
sentence should be served consecutively to that
imposed by the magistrates on the second occasion. An appeal was
taken from this order on the ground
that
it contravened s.3(1) of the
Criminal Justice Act 1961, which provides that, in the case of a
person between the ages of 15
and
20, the court may not pass a
sentence of more
than
six months or (where it has power to do so)
less
than
three years.
The
appellant argued that his two sentences
of six months each contravened this provision by virtue of s.34(4)
of
the Act of 1961 (which enacts that "consecutive terms shall be
treated as a single term")
and
s.104(2)
of
the Act
of
1967 which
enacts the same rule for the purpose
of
that Act, however the term
of
imprisonment may be expressed.
If
Lamb's two terms were to be
"treated
as a single term" they
dearly
contravened the prohibition
in s.3(I)
of
the Act
of
1961.
Upon
appeal, however, Lamb's argument was rejected on two
grounds.
In
the first place, the Court held
that
when
quarter
sessions
dealt with him on the second occasion, it merely made an order that
the suspended sentence already imposed should take effect. This was
not to "pass sentence" under s.3(1)
of
the Act of 1961, so
that
the
provisions
of
that sub-section (limiting the court's power to sentence
for not more
than
six months or less
than
three years) did not apply
to such a case.
The
Court
of
Appeal held
that
when
quarter
sessions
ordered the sentence already imposed to take effect, it dealt with the
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