128.Section 70AA provides that after the service of an indictment on an accused person, it is competent for the indictment to be amended to include an additional charge of an offence (or offences - as the singular includes the plural). This additional charge must be of an offence alleged to have been committed by the accused person on whom the indictment was served (or any or all of the accused if there is more than one person subject to the proceedings), but it does not have to relate to the charges included on the original indictment.
129.An additional charge can only be added to the indictment on application to the court by the prosecutor. As per section 70AA(18), where the indictment is in respect of the High Court, the application must be made to a single judge of that court, and in any other case the application must be made to the sheriff.
130.The application must fulfil certain conditions as regards its content and timing, as set out in section 70AA(3) and (4), in order to be granted. Section 70AA(3) provides that the application can only be granted where prosecutor was not aware, and could not have reasonably been aware, of the act or omission forming the subject matter of the additional charge at the time of service of the indictment (for example, that the accused carried out a particular assault). The second condition in subsection (3) is that the application must have been made as soon as was reasonably practicable after the prosecutor became aware of the act or omission forming the subject matter of the additional charge. If the court considers that such knowledge existed at the point of service, or that the application was not made within such time, then the application must be refused. Where the court is content that the conditions are fulfilled, under subsection (2) it must grant the application, unless it otherwise sees just cause not to. Whether and when there is just cause not to grant an application will be for the court to determine, taking into account all the varying facts and circumstances of the case in question and in particular whether any prejudice which may arise can be cured by taking action under subsection (12) instead.
131.Subsection (4) provides that any application must be made at least two months before the trial diet, or can be made at a later date on special cause being shown. The requirement as to the point at which the application is made in subsection (4) does not apply where the trial date has not been fixed at the point of making the application. When the application is made, subsection (6) requires the application to be intimated to the accused, or where there is more than one accused, to all of them. The intimation requirement applies regardless of whether the additional accused persons are also subject to the additional charge. Where an application is made within two months of the trial diet and the court is not satisfied that there is special cause to allow the application at a later date then the application will fail, regardless of whether the conditions in subsection (3) are satisfied, because subsection (4) will not be satisfied.
132.After the court receives an application from a prosecutor, under section 70AA(7) the court is required to fix a diet for hearing the application and considering any representations regarding a late application (if necessary). This requirement does not apply where there is a diet already fixed at which these matters could be dealt with, or where the accused consents to the charge being added to the indictment (though it would remain open to the court to nevertheless hold a hearing if it saw fit, even where the accused consented). If there is a preliminary hearing or first diet fixed at which the court could determine the application but the timing of that hearing or diet is inopportune for doing so, the court would be able to exercise its existing power under section 75A(5) to adjust that date. In a case where the application is made late, it will be for the court to determine how this is dealt with at the hearing – i.e. whether to dispose of the lateness question at the outset or whether to hear representations on all matters relating to the application and reserve its decision on that preliminary point until the end.
133.Subsection (9) provides that where an application is being considered at a first diet, the court may only proceed to determine the application after the accused has stated how the accused pleads to the indictment as served. The relevant rules for this plea at a first diet are at section 71(6) of the 1995 Act. Where an application is being considered at a preliminary hearing, as a result of the amendment to section 72 of the 1995 Act in section 11(6) (see paragraph 138 of these Notes), the accused will also be required to plead to the indictment prior to the application being considered. Where, at either form of diet, the accused pleads guilty in respect of all charges on the indictment, the additional charges cannot be added and the court must refuse the application. The reference in subsection (10)(a) to pleading guilty to the indictment is, as alluded to in the previous sentence, a reference to pleading guilty to all charges on the indictment but, in line with the approach taken in the rest of the 1995 Act, this is taken as read without being spelled out(1). However, if the accused pleads not guilty in respect of any or all of the charges on the indictment, the court may proceed to determine the application. In the event that the court grants the application, the court must then require the accused to tender a plea in respect of the additional charge at that diet.
134.Section 70AA(11) provides that where the court is determining an application at a diet other than a first diet, the court may, on cause shown, proceed to determine the application without the accused being present. Where the court is determining an application at a first diet, section 71(6) of the 1995 Act (in conjunction with section 70AA(9) as discussed at paragraph 133 of these Notes) will require the accused to be present in order to plead to the indictment, and therefore the application will not be able to be determined in their absence.
135.Where an indictment is amended under section 70AA, subsection (13) provides that the amendment must be sufficiently authenticated by the initials of the clerk of court. No provision is made about serving the amended indictment on the accused as the accused will have received notice of the application and been present or represented at the hearing at which it was disposed of.
136.Where the charge added is of committing one or more of the offences listed in section 66(14A)(b) of the 1995 Act, and the accused has not previously received a notice under section 66(6A)(a) of that Act in respect of the current proceedings, subsection (14) requires the accused to be served with a notice specifying the matters specified in that paragraph. The matters are that the proceedings may be conducted only by a lawyer, that it is therefore in the accused’s interests to obtain the professional assistance of a solicitor if not obtained already, and that if the accused does not engage a solicitor for these purposes then the court will do so on the accused’s behalf. However, subsection (15) confirms that where the prosecutor fails to comply with these requirements, this will not affect the validity or lawfulness of the proceedings as a whole. As per subsection (16), service of this notice, and the intimation of an application to amend an indictment, may be effected by any officer of law (in addition to other methods of service and intimation).
137.As a result of the additional provision made by section 70AA(17), the procedure for appeals set out in section 74 of the 1995 Act and any Act of Adjournal made under that section will apply to the determination – regardless of whether an application is determined at a first diet or preliminary hearing, or at another hearing fixed by the court. Where the application is determined at a first diet or preliminary hearing, it is section 74(1) itself which provides the authority for the appeal, but where the application is determined at another hearing then it is section 70AA(17) which provides the authority.
138.Subsection (5) of section 11 modifies section 71 of the 1995 Act, to provide that applications under section 70AA can be considered at first diets. Subsection (6) amends section 72 of the 1995 Act, to similarly provide that applications under section 70AA can be considered at preliminary hearings.
139.Subsections (8) to (12) modify the 2010 Act to impose additional disclosure duties where a charge is added to an indictment under section 70AA of the 1995 Act. Subsection (8) amends section 117 of the 2010 Act, to provide that where the indictment is amended under section 70AA after the accused has appeared for the first time on petition or indictment, the disclosure duties in section 117(2) and (3) imposed on the relevant investigating agency will be triggered again in respect of the new charge. Where the investigating agency has already disclosed information to the prosecutor regarding this matter under section 117 (following the first appearance on petition or indictment), the investigating agency will only be required to disclose the relevant information that has not previously been provided to the prosecutor. Subsection (9) modifies section 118 of the 2010 Act, to confirm that the continuing duty on the investigating agency to disclose information to the prosecutor does not apply to information that has previously been disclosed to the prosecutor in accordance with the continuing duties. Subsections (10) to (12) make equivalent changes to the disclosure duties imposed on the prosecutor in sections 121 to 123 of the 2010 Act.
Interpretation Part 1: Criminal Justice Modernisation Inserted section 70AA – Addition of charge to indictment