Defence by Ambush.
“A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance.” First published in the Justice of the Peace (2004) 168 JPN 24.
Mutual Disclosure
The prosecution has, since the commencement of the Magistrates' Courts (Advance Information) Rules 1985 ("Rules"), been required in "either-way" cases to disclose to the defence a summary of its case. Prior to the implementation of the Criminal Justice Act 1967, however, the defence was not required to reveal anything about its case before the trial. Even then, the defence was only required, in trials on indictment, to give particulars of any proposed alibi defence. It was not until the Practice Direction on Plea and Directions Hearings in the Crown Court [1995] 1 WLR 1318 ("Practice Directions") and the Criminal Procedure and Investigations Act 1996 ("CPIA") that, as part of a system of mutual disclosure between prosecution and defence, the defence has had any general obligation to inform the court or prosecution of any defence issues or the nature of the defence case. By virtue of paragraph 10 of the Practice Directions, following a not guilty plea in the Crown Court, the prosecution and defence are expected to inform the court (and consequently each other) of: "(a) the issues in the case; .... (j) any point of law which it is anticipated will arise at trial, any questions as to the admissibility of evidence which appear on the face of the papers, and of any authority on which the party intends to rely; ... [and] (n) any other significant matter which might affect the proper and convenient trial of the case."
The Defence Statement
The CPIA's main purpose was to replace the common law rules relating to the disclosure by the prosecution of unused material. Under ss 3 and 9 of the CPIA the prosecution is under a continuing duty to make "primary disclosure" to the defence of any prosecution material "which in the prosecutor's opinion might undermine the case for the prosecution". That duty arises following committal or, in the magistrates' court, after the defendant has pleaded not guilty. In the Crown Court, compliance by the prosecution gives rise to a requirement on the accused, under s 5, to "give a defence statement to the court and the prosecutor." In the magistrates' court, however, the giving of a defence statement is not compulsory (s 6). Where a defence statement is given it then triggers a continuing duty of "secondary disclosure" on the prosecutor (ss 7 and 9). The prosecutor must disclose any material "which might be reasonably expected to assist" the defence.
Kennedy LJ expressed the view, in R (Sullivan) v Maidstone Crown Court [2002] 1 WLR 2747, that the two reasons for the defence statement are firstly "to prevent ambushes and give prosecutors a proper opportunity to respond to lines of defence" and, secondly, "to facilitate relevant but not burdensome disclosure of documents."
In R v Gleeson [2003] EWCA Crim 3357, the Court of Appeal had to consider an appeal, against a Crown Court conviction, presented by a defence counsel who "deliberately chose not to comply with his professional duty to disclose a critical, possibly determinative, issue of law on which the defence intended to rely." The defendant had originally faced a sole count alleging a common law offence of conspiracy to defraud. His defence was that the jury could not be sure that there was a conspiracy to defraud since, on the facts, there could equally have been a conspiracy to launder money. The deception was to operate on the basis that the victim would pay £35,000 upon the promise that in due course $75,000,000 would be paid into an account opened for him. When the prosecution closed its case, defence counsel, without prior warning, made a submission of no case to answer based on the decision of the House of Lords in DPP v Nock [1978] AC 729, that a common law offence of conspiracy to defraud was not made out if, unknown to the alleged conspirators, it was impossible to achieve the object of the conspiracy. The impossibility arose from the fact that an undercover police officer had taken the place of the victim in dealing with the defendant. The judge accepted the defence submission, but allowed the prosecution to amend the indictment by adding a second count alleging statutory conspiracy to obtain money by deception. The defence application for a retrial was refused. The judge said that there was no injustice to the defence in allowing the prosecution to "change the legal description of the dishonest activities" that it had always alleged. Any unfairness, he ruled, could be cured by allowing the prosecution witnesses to be recalled for any further cross-examination. In the Court of Appeal, therefore, it fell to be determined: "Where a defendant with an unanswerable legal challenge to the indictment, which unless amended would entitle him to an acquittal, leaves it until the end of the prosecution case before raising it, does justice require that, though the defect is remediable by amendment, no amendment should be permitted at that stage or, if it is, that there should be a fresh trial before another jury?" Auld LJ noted defence counsel's acknowledgement that he had delayed raising the Nock point to the last possible moment because he thought it would secure him a tactical advantage. Auld LJ held that defence counsel should have raised the Nock point both at the plea and directions hearing and in the defence statement thus allowing the prosecution to correct their error prior to the start of the trial. He said:
"Fortunately for justice, his deliberate delay in identifying it as an issue until the close of the prosecution case did not, in the circumstances ... result in any unfairness from correction of the error at that late stage. ... For defence advocates to seek to take advantage of such errors by deliberately delaying identification of an issue of fact or law in the case until the last possible moment is, in our view, no longer acceptable, given the legislative and procedural changes to our criminal justice process in recent years."
Auld LJ repeated what he had said on disclosure in Chapter 10 of his Review of the Criminal Courts of England and Wales (October 2001) ("Review"):
"To the extent that the prosecution may legitimately wish to fill possible holes in its case once issues have been identified by the defence statement, it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."
Earlier in the Review, Auld LJ pointed out that the defendant's right to silence was "to protect the innocent defendant from wrongful conviction, not to enable the guilty defendant to engage in tactical manoeuvres designed to frustrate a fair hearing and just outcome on the issues he intends to take."
Disclosure in the Magistrates' Court
It is apparent from R v Gleeson that the defence will not be permitted to engineer an advantage by failing to comply with its duties under the Practice Directions and CPIA. But, neither the Practice Directions nor the statutory obligation to give a defence statement under the CPIA, apply to trials in the magistrates' court.
Section 49(1)(m) of the Crime and Disorder Act 1998 gives the magistrates' court the power to "give, vary or revoke directions for the conduct of a trial". Such directions, however, are limited to timetabling and matters concerning the attendance of the parties, the service of documents and the manner in which evidence is to be given. Magistrates do not have the power to direct that the defence disclose anything about the issues in the case or about the nature of its defence.
Although the Attorney General's Guidelines on Disclosure ("Guidelines"), issued in November 2000, apply to criminal proceedings in both the Crown and magistrates' courts, only paragraph 43 (out of 45 paragraphs) deals specifically with summary trials. It says:
"The prosecutor should, in addition to complying with the obligations under the CPIA, provide to the defence all evidence upon which the Crown proposes to rely in a summary trial. Such provision should allow the accused or their legal advisers sufficient time properly to consider the evidence before it is called. Exceptionally, statements may be withheld for the protection of witnesses or to avoid interference with the course of justice."
The Guidelines, therefore, effectively extend the prosecution's duties, albeit on a non-statutory basis, under the Rules such that it must disclose "all evidence" and not just a summary thereof. Furthermore, this duty applies to summary trials and hence, unlike the Rules, to summary-only as well as to either-way matters. The Guidelines emphasise that "fair disclosure to an accused is an inseparable part of a fair trial" and, in paragraph 3, they recognise that "there are other interests to be protected". Those other interests are said to include the interests of "the victims and witnesses". The Guidelines, however, do not specifically acknowledge that a fair trial requires fairness to the prosecution as well as to the defence and they do nothing to encourage voluntary disclosure by the defence other than in pointing out that the more detail a defence statement contains the more likely it is to result in the prosecution disclosing any remaining material to assist the defence.
Ambush in the Magistrates' Court
Can it be in the interests of justice that the nature of the defence must be disclosed in the Crown Court but that the accused should have a complete discretion as to whether to disclose anything of his defence should he be tried in the magistrates' court?
The consequences of enabling the defence to conceal the nature of its defence, in summary trials, can be contrary to justice and fair trials. In some either-way cases, the prosecution may argue overzealously that the magistrates should not accept jurisdiction for a trial, even where the case is in fact quite suitable for summary trial, because the prosecution is otherwise likely to be greatly disadvantaged by a continuing ignorance as to the nature of the defence. Conversely, the defence will often strenuously urge that the magistrates accept jurisdiction and will elect for summary trial, not necessarily to reduce costs or to try and limit sentencing powers, but to enable it to set a trap for the prosecution. The result is that some complex cases which are more appropriately dealt with by a judge and jury are heard before lay magistrates. It may be, of course, that there is a political desire to keep as many cases as possible in the magistrates' court in order to avoid the generally higher costs of trial by jury. It is to be hoped that any such considerations have not been allowed by the legislature to prevail over the interests of justice.
Crown Court judges, of course, unlike lay justices, are legally qualified, have considerable experience of the criminal process and can consistently command unwavering authority over the advocates who appear before them. In general, a bench of lay magistrates is more likely to be disadvantaged than a judge by not having advance notice of the nature of the defence and yet, unlike the judge, they are denied an automatic right to such notice. In the less likely event of a defence ambush in the Crown Court, a judge can deal with any matters of law in the absence of the jury; magistrates, however, have to deal with both fact and law and can be taken completely unawares. Defence by ambush may not just ensnare the prosecution but also the magistrates and ultimately justice.
The fact that, in the magistrates' court, the prosecution is not entitled to a closing speech, whereas in the Crown Court it may sum up its case immediately before the closing speech for the defence, is an anomaly that makes the lack of compulsory defence statement in the magistrates' court even more likely to result in ambushes. In the Crown Court the prosecution has a better chance of repairing ambush damage which has occurred prior to the defence closing its case and is likely to be granted leave to reply to anything new arising out of the closing speech for the defence.
Partial Defence Disclosure
Although in a summary trial the accused is not bound to serve a defence statement, he may in limited circumstances be obliged to give some indication of his defence.
The Crown Court (Advance Notice of Expert Evidence) Rules 1987, as their name implies, require mutual prosecution and defence disclosure, in advance of a trial in the Crown Court, of any expert findings or opinions which either party proposes to adduce in evidence. It was not until 10 years later that the Magistrates' Courts (Advance Notice of Expert Evidence) Rules 1997, made pursuant to the CPIA, required that comparable written statements of expert findings and opinion were to be furnished in the magistrates' court. Where in a summary trial the defence intend to rely on expert evidence, they are thus obliged to serve a statement on the prosecution and this will inevitably give at least a clue as to the nature of the defence. It does not mean, however, that the accused will have no additional defence concealed up his sleeve. It is somewhat peculiar that the defence is no longer allowed to ambush the prosecution with a defence based on expert evidence but is still generally able to surprise the prosecution in a summary trial with any other type of defence.
Some statutes, notably those that do not require the prosecution to prove mens rea, contain a statutory defence. Such defences in, for example, s 24 of the Trade Descriptions Act 1968 and s 39 of the Consumer Protection Act 1987, require that, where the accused asserts as part of a "due diligence" defence that the offence was due to the act or default of another or to reliance on information given by another, he shall not, without the leave of the court, be entitled to rely on the defence unless, he has given the prosecution at least 7 clear days notice thereof. The serving of such a notice will give the prosecution some indication as to the defence but, again, it does not follow that the defence will not seek to rely on an additional undisclosed defence which might be that no offence was committed in the first place. Whilst notice of the above statutory defences is required, magistrates have the discretion to waive that requirement and could therefore leave the prosecution to be taken unawares. However, before giving leave for the statutory defence to be pursued without proper notice, magistrates should bear in mind the words of Lord Widgery CJ in McGuire v Sittingbourne Co-operative Society Ltd (1976) 140 JP 306, where he said:
"Unless some little care is taken in regard to these matters, we may find the administration of this Act sliding down to the sort of slip-shod level at which all a defendant has to do is to say in general terms that the default must have been due to somebody in the shop 'one of the girls', or some expression like that, and thereby satisfy the onus cast upon him ... It is important to emphasise to justices that the onus cast upon a defendant under s 24 is not thus easily satisfied. The defendant has to prove on a balance of probabilities that the offence was due to the act or default of another, and that he, the defendant, took all reasonable precautions. The justices should not accept either of those propositions unless the defendant has carefully examined and investigated the circumstances and done his best to show the justices how the offence was committed and why."
Counter-attack
Although, in a summary trial, the accused can generally keep his defence close to his chest till he chooses to reveal it, the judiciary has certainly not condoned such tactics and the unfair advantage gained by the defence has often been taken away. For every case where an ambush has failed or its advantages negated on appeal there will, however, be several others where it has succeeded. The element of surprise can be a powerful weapon used to deny the prosecution equality of arms. Prosecutors must be ready to counter ambushes with the authorities which have sought to redress the balance.
Technical Points and Adjournments
When the defence ambushes the prosecution with a technical point, of which it could have given notice, the prosecution will normally be entitled to an adjournment to present the necessary evidence to deal with the point. In Cooper v Westminster City Council [1997] COD 16, Cooper was prosecuted for offences of street trading without a licence, contrary to the London Local Authorities Act 1990. At the conclusion of the summary trial, the defence submitted that the prosecuting authority had not proved that it had adopted the relevant Part of the Act by passing a resolution appointing a day for it to come into force and by advertising the same. The prosecution then sought to persuade the stipendiary magistrate that he could infer that the Act had been properly adopted. In the alternative, the prosecution sought an adjournment to allow it to adduce evidence of the adoption and advertising thereof. Rather curiously, the magistrate concluded that the adoption of the Act could be inferred from, inter alia, the very fact that the prosecution was enforcing it. Cooper successfully appealed against that decision. Smith J, however, said that technical points should be taken "openly and at the start of the proceedings" and that although the magistrate was wrong to have drawn the inferences he did, he should have considered whether to grant an adjournment to enable the prosecution to produce the necessary evidence. Beldam LJ, agreeing, said:
"Points such as the point ... taken before the magistrate at the 11th hour should not be taken without notice being given. ... The administration of justice is brought into disrepute by a waste of time and costs, brought about by unduly lengthy or technical arguments which do not go to the real merits of a case. The adversarial process has limits and, in particular, in the procedural stages of an investigation in the magistrates' court legal representatives should exercise a proper degree of co?operation to ensure that the scarce resources of the system are not wasted, and that the real issues between the parties are identified before the matter comes to trial before the court, if at all possible. ... It is much to be hoped that in future, ambushes of this kind will not be laid for a prosecutor."
In Houghton v Liverpool City Council (1999) The Independent November 22, Houghton was charged with possessing for sale watches and jackets, bearing unauthorised trade marks, contrary to s 92(1) of the Trade Marks Act 1994 ("TMA"). Prior to his trial, Houghton's solicitors informed the prosecuting authority that the only issue would be whether Houghton could rely on the statutory defence in s 92(5) of the TMA. The prosecution served various witness statements and exhibits on the defence under s 9 of the Criminal Justice Act 1967 and the defence did not require any of the witnesses to attend to give oral evidence. At the trial, however, the defence objected to most of the evidence in the s 9 statements on the basis that it was hearsay. The prosecution then sought and was granted an adjournment by the stipendiary magistrate to enable the witnesses to be called. Houghton was subsequently convicted. One of the questions on Houghton's appeal was whether the court had been wrong to allow the adjournment. On that point, Laws LJ said:
"Since the prosecutor went to court, in fact anticipating that the statutory defence would indeed be the only issue, it is perhaps unsurprising that the material deployed to prove the prosecution's primary case was not as strictly compliant with the rules of evidence as certainly it should have been. … It was not unfair, and certainly not unlawful, for the magistrate to adjourn the proceedings as he did. It is true that it gave the prosecution an opportunity to correct errors which they should not have made; but it is elementary, indeed trite, that the criminal courts (no doubt like every court) have to see that justice is done to all parties."
In R v Horseferry Road Magistrates' Court ex parte Hillier (1998) 162 JP 783, Hillier alleged that he had only pleaded guilty to charges of exposing for sale perfumes bearing unauthorised trade marks, contrary to s 92(1) of the TMA, because he had been coerced by the stipendiary magistrate into disclosing his defence namely that he would rely on a break in the continuity of the prosecution's evidence which failed to establish that the perfumes, examined by experts and pronounced counterfeit, were the same goods seized from Hillier by trading standards officers. Hillier sought judicial review, contending that the magistrate was not entitled to demand that he reveal his defence and that, having done so, he was prejudiced because the prosecution was able to mend its fences before the trial. The prosecution argued that there was no prejudice because it had always intended that if there were to be a not guilty plea they would have served statements as to continuity. The application for judicial review was dismissed on the basis that even if the magistrate had been unfair, and even if the prosecution would not have otherwise spotted and repaired the weakness in its case before the trial; the defendant had not been prejudiced. Kennedy LJ said:
"This case would have been called on for trial [and] the prosecution would still have had … to contend with ... a lack of continuity evidence and also a lack of evidence to show that the goods had been exposed for sale. If that were the position it is ... inevitable that at the close of the prosecution case a submission would have been made ... on behalf of Mr Hillier as to the state of the evidence. ... At that stage it is equally inevitable that [the prosecution] would have asked ... to call the necessary evidence ... or [for] an adjournment to enable the evidence to be adduced. ... The adjournment could and should and would, in fact, have been granted. This was an important link in the proof of the prosecution case, but it was a matter of proving simple continuity. It did not go to genuine merits at all, and in those circumstances ... it would be quite wrong for a magistrate not to afford to the prosecution the opportunity of making good a defect of that kind, perhaps with a sanction in costs."
It is notable that in each of Cooper, Houghton and Hillier the summary proceedings were presided over by a stipendiary magistrate. Whilst that may be mere coincidence, it may also be the case that lay magistrates would be less likely to grant adjournments in such circumstances and certainly much less likely to insist that the defence reveals its defence prior to the start of the trial.
Proof of Relevant Legislation or of Authority to Prosecute.
Some statutes require that the authority or consent of some person, such as the Director of Public Prosecutions is required before criminal proceedings are instituted under them. Where prosecutions are brought under an Order or Regulations, proof of the relevant Statutory Instrument may be required. Ambushing the prosecution when it has closed its case without providing evidence of relevant consent or legislation will normally be futile since the authorities show that a magistrates' decision to acquit the defendant, without giving the prosecution the opportunity to correct this type of omission, will be overturned on appeal. Nonetheless, inexperienced magistrates may acquit on the erroneous basis that the prosecution cannot reopen its case and the prosecution, whilst likely to succeed on appeal, will be put to unnecessary trouble and public expense.
In Price v Humphries [1958] 2 QB 353, a prosecution was heard before lay magistrates in which an offence was alleged under the National Assistance Act 1946. The institution of such proceedings required the consent of the Minister. Upon the close of the prosecution's case, the defence contended that the necessary consent had not been proved. The prosecution then made it known that the consent was available, but the justices refused to allow any further prosecution evidence. On the prosecution's appeal, Devlin J said:
"It is the duty of the clerk to the justices or whoever issues the summons, to see that it is not issued unless the consent or the authority is produced, and there is a presumption which indeed is merely a facet of the wider maxim omnia praesumuntur rite et solemniter esse acta that the clerk has discharged his duty in that respect. Accordingly, prima facie ... the summons had been properly issued and there was no need for the prosecution to take any further step unless objection was taken. If objection is taken, then they must be in a position to prove it. ... If the matter is one of substance the prosecution ought not to be allowed to reopen its case. On the other hand, [the authorities] show that if the matter is one of technicality, such as the proof of a statutory rule or order, or something of that sort, then the justices should allow the prosecution case to be reopened. But where what is in issue is simply the question of whether proceedings are properly authorised, no question really arises about reopening the prosecution case at all. ... If the prosecution is allowed without objection to close its case, then [it] has done all that is necessary and the summons is presumed to be a good one and properly authorised. If the defence wants to challenge that and take objection, they should [do so] before the prosecution case is closed, and having taken their objection the burden will pass to the prosecution to produce the evidence they have which shows that the proceedings were duly authorised."
Lord Goddard CJ added:
"I do not think that [the justices] ought to allow an objection which has been, so to speak, kept up the sleeve until the last minute, so that when the prosecution have been induced to say: 'We have closed our case,' it is then said: 'You have not proved consent'."
In Hammond v Wilkinson (2001) 165 JP 786, the defendant had been charged with failing to dispose of animal by-products, as required by the Animal By-Products Order 1992, contrary to s 73 of the Animal Health Act 1981. After the prosecution closed its case, the defence contended that the prosecution had failed to prove the Order in accordance with the Documentary Evidence Act 1868. When that submission was first made the lay magistrates adjourned the case for 28 days. When it came back before them, however, they accepted a defence submission that the Order had to be proved during the course of the prosecution case and that the prosecution's case having been closed it was too late. The defence cited Price v Humphries as authority for that proposition. The clerk did not read the authority sufficiently carefully to observe that it was being misconstrued, and so advised the magistrates to acquit. The prosecution had not only been ambushed, but had been defeated on the strength of an authority that was actually in its favour. On appeal Latham LJ said:
"[Price v Humphries was not] authority for the proposition that once a prosecution case has been closed a matter such as the proof of the statutory instrument under which the information has been laid cannot be dealt with, indeed to the contrary. If the magistrates had been referred to the judgment of Devlin J … they would have appreciated … that where there was a technical deficiency in a prosecution case, such as the failure to prove an Order, then that was precisely the sort of situation in which the magistrates should permit the prosecution to reopen its case in order to put right, if it could, that deficiency. … The course they should have adopted was to permit the prosecutor to remedy, if he could, the deficiency of proof and to ask him if he had a stationary office copy of the Order and, indeed, to have made such sensible inquiries as was possible in order to see whether or not such a copy was readily accessible without undue difficulty."
A detailed synopsis of when the prosecution may, contrary to the general rule, call evidence after closing its case was given by Lloyd LJ in R v Francis [1990] 1 WLR 1264.
Prosecution Evidence at Close of Defence Case
The defence may choose to launch an ambush only after the close of all the evidence. That point may be strategically chosen by the defence in the belief that it is then too late for any repair to be made to the defects in the prosecution's case. The authorities on such delayed ambushes have tended to arise from drink driving cases under s 5 of the Road Traffic Act 1988.
In Leeson v Director of Public Prosecutions [2000] RTR 385, Leeson was charged with driving with excess alcohol. At his trial, the police officer who had conducted the breath test, using a Lion Intoximeter, failed in giving his evidence to deal with the accuracy of the intoximeter. The defence did not chose to cross-examine the officer on the accuracy of the intoximeter but, at the close of Leeson's case, submitted that there was no evidence that the intoximeter had been properly calibrated. The prosecution then handed a printout to the clerk who placed it in the court file. The magistrates decided that, the test record having been produced, the intoximeter had been calibrated correctly and Leeson was convicted. On appeal, Newman J observed that the officer's failure to produce the documentation proving the accuracy of the intoximeter had been a simple oversight to produce the evidence which was available on the day. He said:
"Justice will not be done if defendants are acquitted purely because of an oversight which was capable of being corrected there and then. The argument takes the canons of procedure to unjustified limits."
Simon Brown LJ agreed and said:
"This case seems to me to fall into that narrow class of cases where exceptionally justices in their discretion may properly admit further evidence from the prosecution even after the defence case has been closed. Its hallmarks are these: first, the lacuna in the prosecution case which this further evidence filled was on the facts a purely technical one; second, the prosecution's failure to ... [put] in the relevant document while the police officer was giving his evidence ... caused the defence no prejudice whatsoever; third, this is a case in which the defence stood by watching the point develop, carefully avoiding any hint of a defence, let alone any challenge, which might conceivably have alerted the prosecution to their failure to comply strictly with all the niceties of these prosecutions. I do not say that the defence are bound to remind the prosecution of all matters required to be proved, but I do say that they can hardly complain if, in the result, justices exercise their discretion so as to secure justice rather than allow a totally unmeritorious acquittal."
Leeson was followed in Jolly v Director of Public Prosecutions (CO/1193/1999), a case with similar facts. Jolly had been charged with driving with excess alcohol in his blood. At his trial, at the end of Jolly's case, the defence submitted that the prosecution's evidence as to the blood analysis results were unreliable as there was no evidence to show that the computer had been working correctly as required by, the then unrepealed, s 69 of the Police and Criminal Evidence Act 1984 ("PACE"). The stipendiary magistrate allowed the prosecution to recall the forensic scientist to bridge the gap in the prosecution's case by giving evidence that the computer had been working properly. Jolly was convicted and appealed. Kennedy LJ pointed out that, under the adversarial system, it was for the prosecution to identify what needed to be proved and to adduce its evidence before the close of its case. In that way the defence would know before opening its own case exactly what it had to meet. The rules enabled the prosecution to call evidence in rebuttal to deal with any issues raised by the defence for the first time during its case. The question to be considered, however, was what should happen if the prosecution failed to adduce a necessary piece of evidence before it closed its case, but later seeks to be able to introduce that evidence?
Kennedy LJ reviewed the authorities, including Leeson. He noted that in R v Pydar Justices ex parte Foster [1995] 160 JP 87, Curtis J dismissed the submission that a defending advocate was entitled to "keep his powder dry", saying: "Without any doubt whatsoever, it is the duty of a defending advocate properly to lay the ground for a submission, either by cross examination or, if appropriate, by calling evidence". Kennedy LJ was not impressed by the defence argument that the powers of the magistrates were proscribed by rule 13 of the Magistrates' Courts Rules 1981 which dealt with the order of speeches in a magistrates' court and which made no provision for the prosecution to reopen its case, save by calling evidence in rebuttal. He referred to what Lord Parker C.J had said in Simms v Moore [1972] QB 327, namely that the 1981 Rules were "directory not mandatory" and leave the magistrates with an inherent power to regulate the procedure in their court "in the interests of justice and a fair and expeditious trial." Kennedy LJ concluded that:
"Any trial court must recognise that it is the duty of the prosecution to call its evidence before closing its case. But it is now beyond argument that there is a general discretion to permit the calling of evidence at a later stage, which extends in a magistrates' court up to the time when the Bench retires. Before exercising that discretion, the court will look carefully at: -
(1) the interests of justice overall and, in particular -
(2) the risk of any prejudice whatsoever to the defendant.
The result will be that the discretion will be sparingly exercised, but I venture to doubt whether it assists any longer to speak in terms of 'exceptional circumstances'. Each case, as the authorities show, has to be considered on its own facts, and so considered ... in this case ... the appeal fails and is dismissed."
In R v Cook ex parte Director of Public Prosecutions [2001] Crim LR 321, the Divisional Court looked yet again at a situation where the defence left it until the end of its case to submit that the prosecution had failed to adduce evidence as to the reliability of an intoximeter. Cook had appealed against conviction to the Crown Court. Cook's conviction for driving over the alcohol limit was upheld after the Judge allowed the prosecution to recall a witness who, only then, gave evidence that the computer was working properly. On Cook's appeal to the Divisional Court, Poole J said:
"The effect of Kennedy LJ's decision and review of the authorities in Jolly ... is further to limit the opportunities for the ambush defence once so popular in drink driving litigation. In a proper case, applications to recall a witness may properly be granted, provided, of course, that there has been no absence of good faith on the part of the prosecution and, even more significantly, where no possible material prejudice can redound to a defendant, who will be given every possible opportunity, as the appellant was here, to deal with the evidence heard by way of recall. In such circumstances an application to recall a witness to deal with evidence previously omitted by mere oversight may properly be granted, and I would refuse this appeal."
Schiemann LJ agreed and said that if, at the close of the prosecution's case, the defence considered that a prima facie case had not been made out then it was generally at that point that the defence should make a submission of no case to answer. He said:
"If that submission succeeds, then the prosecution can apply to recall someone. That application may be granted or may be rejected, depending on the facts of the case, essentially on the question whether any prejudice to the defendant would be caused. But what seems to me quite indefensible is the submission by [defence counsel] that the defence can, by reserving the submission until after the close of the defence case, put itself in a stronger position than it would have been had it made the submission earlier on. That seems to me to encourage a totally wrong approach to the administration of justice."
It may be that Jolly and Cook are so determinative that they have staved of further similar appeals or it could be that the repeal of s 69 of PACE, with effect from 14th April 2000, has significantly reduced a fertile source of technical defences. The admissibility of computer records is now governed by the common law and, unless there is evidence to the contrary, the court will presume that computers were operating properly. Putting the onus back on the defence to challenge the accuracy of computer evidence means that if the defence does not raise any defence, based on an alleged problem with the computer, such a defence cannot succeed. Although s 69 of PACE has gone, there are still numerous other technical requirements that it will, from time to time, fall upon the prosecution to fulfil. It is clear on the authorities that they should be permitted to do so even after the close of the defence case provided that it is in the interests of justice and it is not prejudicial to the defendant. Clearly, a defendant is not to be taken to be prejudiced solely by the fact that allowing the prosecution to call further evidence could result in the defendant's conviction.
It will be appreciated that the ambush cases, such as Jolly and Cook fall into a category where the prospect of ambush only arises during the course of the trial. In these cases the prosecution is fully prepared and able to prove its case but, to the delight of the defence, simply fails to deal with a technical point. It follows that extending the scope of defence statements would not stave off this type of opportunist ambush. Nonetheless, such defence ambushes can and should be thwarted by the courts continuing to allow the late admission of prosecution evidence which has been omitted by oversight.
Dock Identification
In Barnes v Chief Constable of Durham, sub nom DPP v Barnes (1998) 162 JP 126, magistrates allowed a police officer to identify the man in the dock, who was facing a drink driving allegation, as the person he had taken a urine specimen from some 33 months earlier. On his appeal against conviction, Barnes cited from Archbold which commented that: "It is now difficult to conceive of circumstances in which a trial judge would permit either a dock identification or evidence of a dock identification." Popplewell J held that:
"The passage in Archbold may properly represent the law as it applies to the Crown Court but has singularly little application to the everyday activities of the magistrates' court. … There is no logic in making a distinction in regard to dock identifications between the Crown Court and the magistrates' court. However, it has to be recognised that every day in a magistrates' court those charged, for instance, with careless driving, who have made no statement to the police, are entitled to sit back and in the absence of identification to submit that it has not been proven that they were the driver. To deal with that it has been customary ever since I can remember for a police officer or other witness to be asked, 'Do you see the driver in court?', and for him to identify the defendant. Absent such an identification, an acquittal may well follow. If in every case where the defendant does not distinctly admit driving there has to be an identification parade, the whole process of justice in a magistrates' court would be severely impaired."
Popplewell J, in the above extract, was effectively saying that the defence should not be allowed to ambush the prosecution with a defence that identity had not been proved. That indeed was the interpretation attributed to Popplewell J's decision by Stanley Burnton J in Karia v DPP (2002) 166 JP 753. Karia had been stopped by a police officer for speeding and gave his name, address and date of birth. He was subsequently summonsed for a number of motoring offences. At Karia's trial in the magistrates' court the officer made a dock identification and Karia was convicted. On appeal to the Crown Court, Karia contended that the justices were wrong to have allowed the dock identification and, without that evidence, the prosecution could not prove he was the driver. Karia unsuccessfully appealed to the Crown Court and then appealed to the Divisional Court. If the defence were required to give the prosecution notice that identification was an issue, it would mean that it was required to give disclosure in the magistrates' court not provided for by the CPIA or other statute. Karia contended that requiring him to disclose such information breached his right to silence. Stanley Burnton J, however, considered that requiring a defendant to indicate the issues in the trial was acceptable, as it did not mean that he had to reveal his factual case. He said:
"Many trials would be quite impractical and would, in fact, be unfair if the court were unable to elicit from the parties what the issues in the case are. The fairness of a trial, of course, as required by Article 6, is not solely fairness to a defendant. The requirement of fairness is not intended to produce a one-sided trial. It is fairness, in the case of a criminal case, as between the prosecution and the defendant. … The present case is … a case in which there was an ambush defence raised only after the constable had, in the magistrate's court, given his evidence in chief. … It is permissible to permit the prosecution to seek and rely upon a dock identification of the accused in circumstances such as those of the present case, where there has been no prior notification that identity is an issue. I say nothing about the appropriateness of that procedure in other circumstances. It is not a breach of the Human Rights Act or Article 6 of the European Convention for the court to expect, and in that sense require, an accused to indicate prior to trial that identification as the driver is in issue. In the absence of such prior indication, it is fair to permit the prosecution to seek and rely on a dock identification of the accused as the driver for the purpose, as was stated in Barnes, of preventing an unmeritorious, purely formal objection being taken to the prosecution case and an unmeritorious submission of no case to answer being made at the close of the prosecution evidence."
As in Cooper v Westminster City Council, ante, the Divisional Court therefore considered it appropriate for the defence to give the prosecution notice of a technical defence. This was not unfair to the defence. In Karia, for example, it did not follow, from the fact that the prosecution was permitted to rely on a dock identification, that it could necessarily prove that identification. As Stanley Burnton J said, "in normal circumstances, dock identifications are of little, if any, probative value. It may be that ... the prosecution in many cases will be unable to prove its case because of the lack of probative value of the dock identification, but that is a different question from the question of the fairness or otherwise of the proceedings at the time they take place."
Amending Informations
In allowing the prosecution to add a second count to the indictment in R v Gleeson, ante, the Crown Court was doing the equivalent of allowing the prosecution in the magistrates' court to amend an information. In R v Eastbourne Justices. Ex parte Kisten (1994) The Times December 22, McCullough J said that there was nothing in rule 100 of the Magistrates' Courts Rules 1981 or section 123 of the Magistrates' Courts Act 1980 which suggested that a summons could not be amended even after a plea or finding of guilt. In that case, as the defect had arisen through clerical error and the defendant had not been misled, there was no injustice in allowing the amendment.
It will be apparent that the defence, having spotted a defect in an information, might well decide to say nothing until the close of the prosecution case or even its own case and then submit that the information is defective or that the offence as alleged has not been proved. In R (DPP) v Short [2001] EWHC Admin 885, the information alleged that Short had "used" a motor vehicle on a road after consuming excessive alcohol. Such an offence, however, could only be committed by a person "driving or attempting to drive" a motor vehicle. It was only at the conclusion of the prosecution evidence and after Short elected not to give evidence that the prosecution applied to amend the information to substitute the word "drove" for the word "used". It seems likely that that application was in response to the defence, only then, pointing out the error in the information. The magistrates refused to allow an amendment and the prosecution appealed. Owen J said:
"It is clear from the [authorities] that the effect of s 123 of the Magistrates' Courts Act is to give a wide discretion to the court to amend an information; secondly, that the discretion will ordinarily be exercised in favour of an amendment unless that would result in injustice to the defendant. In this case no injustice will flow from the proposed amendment. The defendant has been fully aware at all times of the case made against him. In my judgment, the magistrates should have exercised their discretion to permit the amendment of the information."
Reform
It is abundantly clear that the judiciary does not regard the defence as having any entitlement to conduct its defence by ambush. Yet, in his Review, Auld LJ did not recommend that the CPIA be amended to provide for compulsory defence statements in summary trials. Why he did not do so is not at all apparent, particularly as he did recommend that "there should be a single set of statutory rules imposing on the prosecution in all cases a duty to provide its proposed evidence in sufficient time to enable the defence adequately to prepare for trial ..." It is submitted that there should also be a single set of statutory rules, governing defence disclosure, which is applicable to both summary trial and trial on indictment.
It should be noted that the problems associated with defence by ambush are not confined to those cases where it manifests itself in a way which necessarily catches the prosecution off guard. The fact that the defence, in the magistrates' court, is not obliged to serve a defence statement means that the prosecution must prepare itself for every conceivable defence. If the prosecution simply prepares for the obvious defence it risks being taken by surprise and being "headed off at the pass". Usually preparation for the obscure, undisclosed, defence will turn out to have been overcautious and unnecessary. If the defence were required to give advance notice of the issues in a summary trial it would not simply avoid ambush defences but would save the prosecution's time (and the public's money) in preparing to counter phantom defences that were never contemplated. It would also save the court wasting time on hearing evidence on matters which are not in dispute.
Many of Auld LJ's recommendations have been enacted in the Criminal Justice Act 2003 ("the Act") and will amend the CPIA on a day to be appointed. Under the unamended CPIA the duty of the prosecutor on "primary disclosure" is to disclose that "which in the prosecutor's opinion might undermine the case for the prosecution" whereas on "secondary disclosure", having received a defence statement, it is to disclose that material "which might be reasonably expected to assist the accused's defence". Part 5 of the Act provides for a single objective test at both stages of disclosure, including the continuing duty to disclose, which would require the prosecutor to disclose any prosecution material "which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused".
Part 5 of the Act also amends the requirements as to the substance of the defence statement. Whereas formerly the CPIA required that any defence statement should set out "in general terms" the nature of the accused's defence, the statement is now required to set out "the nature of the accused's defence, including any particular defences on which he intends to rely." As before, the statement will have to indicate the matters on which the accused takes issue with the prosecution, but these are now specifically "matters of fact" with a new separate requirement for the accused to indicate any point of law which he intends to take. These additional requirements may well make the defence statement more useful to the prosecution and to the court and may also mean that the prosecution will be clearer about what material might assist the defence. There could therefore be less defence ambushes in the Crown Court. On the other hand, the amendments could result in more defence ambushes in the magistrates' court. A defence statement in a summary trial is already a rarity. Once any defence statement must specify any particular defences relied upon, it will become even more unlikely that the defence will voluntary give such a statement. The defence will be even keener to have trials heard in the magistrates' court, however inappropriate that might be. Qualified judges will have an easier life; lay justices will have a harder time. Justice will not be served.
[See also the subsequent cases of Malcolm v DPP, Focus (DIY) Ltd v Hillingdon (LB of), Stratford-On-Avon DC v Doyle, R v Gilbertson JL v DPP and R v Penner.]
VICTOR SMITH