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01 May 2008 / Robert Wade
Issue: 7319 / Categories: Features , Legal services , Procedure & practice , Profession
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Fatal Flaws

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Robert Wade investigates the use (and abuse) of s123

Defending a case at your local magistrates' court, you spot a fatal flaw in the summons. The date of the charge is wrong. You are poised for a triumphant submission of “no case to answer”—but the prosecutor has also spotted the error. He applies to amend the charge under s 123 of the Magistrates' Court Act 1980 (MCA 1980):

“No objection shall be allowed to any information…for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor.”

Your only remedy is to ask for an adjournment if you consider you have been misled in some way—a temporary reprieve, at best.

Section 123 appears to give the prosecution carte blanche to correct any mistake, no matter how serious. But what if the effect of the proposed amendment is to contravene s 127 of MCA 1980, which prohibits a court from hearing a summary-only

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