124.This section modifies the 1995 Act and the 2010 Act to make provision for the addition of charges to an indictment after the point of service. Subsection (4) inserts a new section into the 1995 Act setting out the procedure by which a charge can be added. Subsections (1), (2), (3) and (5) to (12) make changes to the 1995 Act and the 2010 Act in consequence of this procedure. These changes will operate in conjunction with existing mechanisms under the 1995 Act which ought to already have sufficient flexibility to encompass this new procedure without any amendments being required. For example—
	No provision is made about adding to the witness list to reflect the addition of a new charge. However, witnesses can already be added by the prosecutor late, with the leave of the court, under section 67(5) and (5A). Late objections in respect of any deficiencies in the specification of witnesses are also permitted under section 67(3) on cause being shown. Similarly, section 78(4)(b) allows the court to, on cause being shown, allow the accused to examine witnesses who are notified to the court late.
	No change is made to section 70A which deals with the lodging of defence statements. However, if this duty has already been complied with then it would be expected that in the vast majority of cases an amendment of the indictment would amount to a “material change in circumstances” for the purposes of subsection (4). If in rare cases it did not amount to a material change in circumstances (e.g. because the additional charge was so similar and the defence to it was identical) then no adjustment to the statement would be required but the court would continue to have adequate details of the defence’s approach.
	No change is made to section 78(1) which deals with special defences and incrimination. However, that provision already allows the court the latitude to allow the accused to state such a defence or lead the relevant evidence, on cause being shown, despite the normal notice not being given.
	No change is made to section 79 which deals with preliminary pleas and preliminary issues. However, subsection (1) of that section already allows the court to allow such a plea or issue to be made with the leave of the court on cause being shown despite not having been notified to the court in the normal manner.
	The duty to seek agreement of evidence under section 257 of the 1995 Act applies up until the point of the trial starting, so it will automatically apply in respect of any evidence which arises in relation to the added charge. However, it will not place an untenable burden on any party as the obligation is simply to seek to ensure that certain matters are identified and agreed.
125.Subsection (2) of section 11 inserts a new subsection (2A) into section 65 of the 1995 Act. This new subsection confirms that where a charge is added to the indictment under section 70AA (see paragraphs 128 to 137 of these Notes), section 65(1A) will not affect the indictment as respects that additional charge. As such, where the accused is discharged from an indictment due to the preliminary hearing, first diet or trial not commencing within the relevant set periods after the first appearance on petition, this discharge will not encompass any charge added to the indictment, and therefore the proceedings as respects the added charge will be able to continue. In the event that an indictment were to continue as respects only the added charge(s), the time limits in subsection (4) of section 65 would not be relevant as the accused would not have been committed to prison in respect of the added charge. Similarly, subsection (1) of section 65 will not apply to any added charges as, if the charge is added to the indictment then the accused will not have a first appearance on petition in respect of the added charge because by definition the petition stage will already have concluded by the time the charge is added.
126.Subsection (3) amends section 70(4) of the 1995 Act by inserting a new paragraph (aa). This new paragraph provides that an organisation may appear in court by way of a representative for the purpose of making representations regarding an application to add an additional charge to an indictment under section 70AA (see paragraphs 128 to 137 of these Notes).
127.Subsection (4) inserts a new section 70AA into the 1995 Act.
Interpretation Part 1: Criminal Justice Modernisation Section 11 – Addition of charge to indictment