R v Fitzgerald (John Cornelius)

Date

5 March 2003

Legislation

Forgery and Counterfeiting Act 1981, ss. 5, 6.

Keywords

indictments; amendment to indictment; additional offences for consideration by jury; alternative count; false instrument

Counsel

Nemone Lethbridge for the defendant, Rachel Lawrence for the Crown

Solicitors:

unknown.

Judge:

Pill LJ, Stanley Burnton J, Judge Fawcus

Court:

Court of Appeal (Criminal Division)

Reported:

[2003] EWCA Crim 576; [2003] Crim LR 631; [2003] All ER (D) 35.

Summary:

Fitzgerald was convicted of an offence of having a false instrument in his custody or under his control. The instrument in question was a passport in a false name bearing his photograph which had been previously stolen from another person by a third party.

The judge at trial decided to leave it open to the jury to bring in a verdict under s5(2) of the Forgery and Counterfeiting Act 1981 as an alternative to that in the indictment. On appeal Fitzgerald argued that he had not received a fair trial as the alternative was only introduced after the completion of the defence case.

Before they retired the jury was handed a typed document which had every appearance of being an additional count on the indictment but on which the count number was deleted and a handwritten note added "alternative for jury to consider if they can't agree on Count I".

Decision:

This argument was rejected by the Court of Appeal. The Court of Appeal held that there was force in the argument that this alternative was not available to the jury, but as in fact Fitzgerald was prepared to plead guilty to the offence and was not prejudiced by its late introduction, it concluded that the verdict could be treated as a verdict of the jury on a separate count. Consequently the appeal was dismissed.