In the first of a two-part series, Victor Smith traces the origins of the principle that a charge cannot be amended by substituting one defendant for another
- The source and history of the power to amend.
- A defendant named cannot be substituted for another person, but an error in the name of the correct defendant may be amended.
- The application of this principle to corporate defendants.
There is nothing more fundamental to the administration of justice than that the person who is suspected of committing an offence is the one who has to face the charge. It is imperative that the correct defendant is identified, named and proceeded against within any applicable statutory time constraints. Equally, it would be anathema if a guilty party was able to escape justice by reason of a processing error in relation to its name. Fortunately, the position is that the defendant named in an information (or written charge) or summons (or requisition) cannot be amended so as to substitute a different person or legal entity, but an error in the name of a correctly identified defendant can
