Precedents Cited

The judgment extensively references several key precedents to substantiate the court’s reasoning:

• R v Gregory [1972] 1 WLR 991: This case involved the late amendment of an indictment, where the defendant contended that the amendment introduced new facts after the defense had presented its case. The Court of Appeal in Gregory stressed the importance of preventing injustice through such amendments. However, in Romanenko, the appellate court distinguished Gregory by highlighting that the amendment merely narrowed the prosecution’s case without introducing entirely new elements.
• R v Lillis [1972] 2 QB 236: Referenced to illustrate that the elements of an unamended charge can encompass those of an amended charge, supporting the court's stance that the amendment did not unfairly prejudice the appellant.
• R v McEvilly [2008] EWCA Crim 1162: This case dealt with the complexities of alternative counts arising from the same facts, emphasizing the need for clear jury directions to prevent multiple convictions from a single incident. The Court of Appeal in Romanenko drew parallels with McEvilly to assess the handling of alternative counts.
• R v Harris [1969] 1 WLR 745: Addressed the issue of multiplicity of charges arising from a single incident, cautioning against separate charges that could lead to multiple convictions for the same act. The Romanenko judgment referenced Harris to affirm the irregularity in verdicts related to alternative counts but ultimately found that the specific circumstances of Romanenko's case were distinguishable.

Legal Reasoning

The Court of Appeal meticulously dissected the trial court’s decisions on two pivotal grounds:

• Amendment of the Indictment: The prosecution sought to replace the conspiracy charge with one of being concerned in the supply of Class A drugs. The appellate court held that this amendment did not amount to a shift of grounds since it was based on the same factual foundation and was a narrowing rather than a broadening of the charges. The court underscored that the elements of conspiracy included those of being concerned in the supply, rendering the amendment procedurally sound.
• Alternative Counts and Jury Directions: The second ground of appeal contested the direction given to the jury regarding the alternative nature of the counts. The trial judge had directed the jury that they could convict on either count if they were convinced beyond reasonable doubt. However, the appellate court identified that this led to an irregular verdict where the jury convicted on both counts, which should not have been permissible as the counts were alternatives. Despite recognizing this irregularity, the court found that it did not render the conviction on the amended count unsafe, primarily because the conviction on the first count was substantively supported by the evidence.

Additionally, the court addressed procedural aspects under section 5(1) of the Indictments Act 1915, affirming the prosecution’s discretion to amend indictments provided it does not result in injustice. The appellate court determined that Romanenko was not prejudiced by the amendment, as the prosecution’s case was consistently narrowed without introducing new evidence against the appellant.

Impact

The judgment solidifies the legal understanding surrounding the amendment of indictments and the use of alternative counts in criminal proceedings, particularly in drug-related offenses. Key implications include:

• Flexibility in Prosecution: Prosecutors retain the ability to refine their charges in response to trial developments without overstepping into unjust territories, provided amendments are grounded in existing evidence.
• Jury Direction Protocols: The case emphasizes the necessity for clear and precise jury directions when dealing with alternative counts to prevent irregular verdicts and ensure fair trial standards.
• Precedential Clarity: By distinguishing Romanenko from cases like Gregory, the Court of Appeal provides clearer guidelines on when indictment amendments are permissible, enhancing judicial consistency.

Future cases will likely reference this judgment when addressing the procedural fairness of indictment amendments and the prosecution’s approach to presenting alternative counts, especially in complex drug-related prosecutions.