The age of ambush may be over, but the principle remains that the prosecution must always prove its case.
It is clear that the introduction of the Criminal Procedure Rules ('the Rules') has had a significant impact on criminal litigation. Of particular significance is the duty on the defence to assist the court in identifying the issues in the case. Case law from the Divisional Court has held that the defence may no longer gain advantage by raising issues at the last minute. As noted by His Honour Judge Denyer Q.C., it is fair to say that we have reached the 'end of the ambush'.1
It is tempting, however, to exaggerate the effect of the changes. The experience of practitioners suggests that the changes, as significant as they have undoubtedly been, are being overstated by prosecutors in the Magistrates' Court. In particular, prosecutors are attempting to use the Rules and the associated case law to lighten the burden borne by the prosecution to prove its case. They are doing this in three ways. First, prosecutors are inviting Magistrates to 'exclude' issues raised by the defence which were not raised prior to trial. Secondly, prosecutors are seeking to rely on admissions made in defence statements to prove an essential ingredient of the prosecution case. Thirdly, in an approach which may be termed 'proof by case management', prosecutors are inviting the court to infer from the way a case has been managed that an essential ingredient of an offence may be deemed to have been proved without the need to call evidence.
The 'Exclusion' of Issues
Recent decisions of the Divisional Court have made clear that there is a duty on defence representatives to ensure they notify the prosecution what the 'real issues' will be at the trial. This should be done at the latest before the prosecution closes its case.2 If the prosecution are not so notified then the defence 'can derive no advantage from that or seek... to attempt an ambush at trial'3.
It is equally clear that where such an ambush is attempted the appropriate course will usually be to adjourn the trial so that the prosecution may have a chance to respond4. A prosecution application for costs arising from the need for the adjournment may follow, and may be difficult to resist, but the important point is that the issue raised by the defence will nevertheless be litigated at the adjourned hearing. This outcome is consistent with the overriding objective of dealing with cases 'justly': on the one hand the prosecution's position in respect of costs is protected and on the other hand the defendant has the opportunity to raise an issue relevant to his guilt or innocence.
Writtle v DPP
There is, however, authority to suggest that where an issue is raised at a late stage the court has power to exclude evidence which would otherwise be relevant to that issue. This is what happened in Writtle v DPP5, a case concerning an allegation of failing to provide a specimen of breath, contrary to section 7 of the Road Traffic Act 1988. At trial, the prosecution had adduced orally the evidence of the police officer who had operated the device. He was asked questions by the defence about the procedure he had adopted. The prosecution closed its case, but there was insufficient time to hear the defence case that day and the matter was therefore adjourned. The Court had been led to believe that at the adjourned hearing the defence case, supported by expert medical evidence, would be that the defendant's distressed state had meant that she was unable to provide the specimen of breath. The evidence of the defence expert, a Dr Eccles, had been served in advance of the trial and (it appears) complied with the Part 33 of the Rules which deal with expert evidence.
During the period of adjournment the defence obtained the report of a second expert (named Dr Trafford) which suggested that the breath test procedure carried out by the police officer was flawed. Dr Trafford recommended that the device should be investigated further to check whether it had failed.
At the adjourned hearing, the Magistrates deemed Dr Trafford's report to be inadmissible, finding that it was not relevant to the issue in the case which was whether the defendant had a reasonable excuse for failing to provide a specimen of breath. The Magistrates stated a case asking whether they had been correct to rule that the second expert report was inadmissible.
In finding that the Magistrates were right to decide that the evidence was inadmissible the Divisional Court gave two reasons. First, Part 33 of the Rules permitted the court not to allow a party to introduce expert evidence where that party had failed to comply with procedure. Since the defence had failed to comply, the Divisional Court held that on the facts of the case the Magistrates had been entitled to exercise their discretion in the way they did. Secondly, as a matter of law the Magistrates were correct to rule the evidence inadmissible because it did not relate to an issue which had been raised at the appropriate stage. The appropriate stage to raise the issue addressed by the second expert would have been a 'reasonable time' before the cross-examination of the officer who carried out the procedure.
Writtle v DPP in Practice
The experience of practitioners demonstrates that prosecutors are seeking to rely on Writtle v DPP as authority for the broad proposition that Magistrates may exclude evidence relating to any issue not raised in advance of the trial date. So, for example, where a defendant accused of speeding informs the court at a case management hearing that the issue will be the reliability of the speed gun, if he then arrives at trial and seeks to argue a further issue, namely whether the road signage indicating the speed limit was adequate, the prosecutor might seek to persuade the Court that, in the exercise of the Court's case management powers, it could refuse to admit any evidence relating to the issue of road signage.
It should be remembered, however, that Writtle v DPP was an unusual case for two reasons. First, the evidence in question was expert evidence, in respect of which specific procedural requirements must be met. Secondly, the defence sought to raise a further issue after the prosecution had closed its case. If this further issue had been litigated it was likely that prosecution witnesses would have to be re-called, causing further delay and expenditure.
Most cases will not have the unusual features of Writtle v DPP. In most cases the issue which the prosecution seeks to 'exclude' will have been raised at some stage before, or during, the prosecution case. In such cases, dealing with the case 'justly' will usually mean that the issue should be explored and resolved by the court. If that necessitates an adjournment in order to permit the prosecution to respond to the issue then in most cases the court ought usually to grant one, together with any consequent application by the prosecution for costs. What would normally not be appropriate would be to refuse to hear evidence on the issue thereby depriving the defence of the opportunity to rely on that aspect of its case.
Defence Statements as Part of the Prosecution Case
The second tactic being adopted by prosecutors in the Magistrates' Court arises when it is discovered on the day of trial that key evidence which is necessary to prove an essential ingredient of the offence is missing. In such circumstances, prosecutors have sought to rely on admissions contained in a defence statement as evidence in the prosecution case.
This can be dealt with fairly shortly. A defence statement is a hearsay document. Any admission contained in it may be admissible as part of the prosecution case, either as confession evidence, or as hearsay evidence admitted in the interests of justice pursuant to section 114(1)(d) of the Criminal Justice Act 2003. Importantly, any admission contained in a defence statement can amount to powerful prosecution evidence since the accused is deemed to have given his authority for any defence statement served on his behalf: section 6E of the Criminal Procedure and Investigations Act 1996.
Where prosecutors seeks to rely on defence statements in order to prove an ingredient of their case, it will of course be open to the defence to make an application to the court to exclude the admission of the evidence on the grounds of unfairness. Such an application will not necessarily succeed. Practitioners should therefore exercise care when considering whether to serve a non-compulsory defence statement in the Magistrates' Court. Such a document should only be served if absolutely necessary, and if one is drafted it should contain only such admissions as are necessary to achieve the purpose for which the document is served.
Proof by Case Management
The third tactic being used by prosecutors is to invite the Court to infer from the way a case has been managed that an essential ingredient of an offence may be deemed to have been proved without the need to call evidence.
Suppose an example in which the defendant is accused of speeding. At a case management hearing the Crown is put to 'strict proof' and a specific issue is raised as to the reliability of the speed gun. At trial, the Crown call no evidence to suggest that the defendant was the driver of the vehicle but, at the close of their case, invite the Court to find that this essential element of the offence has been proved. The prosecution might submit that the Court may infer from the way the issues were identified at the case management hearing that identification was not in dispute. The prosecution might pray in aid the recent opinion of Leveson L.J. when he doubted whether putting the Crown to 'strict proof' was consistent with the spirit or letter of the Rules.6 In short, the Crown invite the Court to fall back on 'proof by case management'.
The 'proof by case management' approach to criminal litigation was roundly rejected in Mills v DPP.7 In that case the defendant was alleged to have driven his car whilst disqualified. At the case management hearing, the issue was said to be whether the defendant was the driver of the car. At trial, the prosecution did not lead any evidence (whether by way of an informal admission by the defendant, a formal admission between the parties, or direct evidence of his disqualification by way of court documents) that the defendant was disqualified at the material time. After the close of the Crown's case, the defence did not make a submission that there was no case to answer, and called no evidence. The defence then submitted that the matter should be dismissed, there being no evidence before the Court that the defendant was disqualified from driving at the material time. The prosecution did not seek leave to call further evidence, but the Magistrates nonetheless concluded that the defendant had been disqualified. In reaching this conclusion they appear to have placed reliance on the way the case had been managed. Presumably, the logic was that since the issue had previously been stated to be one of identification, it was permissible for all other elements of the offence to be deemed proved.
The Magistrates stated a case in which they asked whether they had been entitled to convict the appellant 'on the basis of the way the case had been managed...' Giving the judgment of the Divisional Court, Scott Baker L.J. said8:
'[T]he justices [were not] entitled to convict the appellant on the basis of the way the case had been managed and the fact that there had been no positive issue before the court as to the fact of disqualification. At the end of the day, the position is that the Crown always has to prove its case.'
In doing so, the Divisional Court provided a complete answer to the doubts expressed by Leveson L.J. in Balogun v DPP. For, like it or not, there is simply no way for a Court to treat as proved a matter in respect of which evidence is missing. In such circumstances the position remains that the Court has only two options: adjourn or acquit.
Conclusion
The court's case management powers, particularly in the Magistrates' Court, are likely to continue to be a topic of interest. Prosecutors are attempting to use the Criminal Procedure Rules in a manner which tends to lighten the burden on the prosecution to prove its case. Practitioners should be alive to this practice, and be equipped to argue against it.
Footnotes
1. 'The End of the Ambush', Current Law and Justice Weekly. 2009, 173(49), p. 781-782
2. Malcolm v DPP [2007] EWHC 363 (Admin), paragraph 31, per Stanley Burnton J.. and see R v Penner [2010] EWCA Crim 1155 at paragraph 18
3. R (DPP) v Chorley Justices [2006] EWHC 1795 (Admin), paragraph 26, per Thomas L.J.
4. See for example R (Lawson) v Stafford Magistrates' Court [2007] EWHC 2490 (Admin)
5. [2009] EWHC 236 (Admin)
6. Balogun v DPP [2010] EWHC 799, at paragraph 16
7. [2009] RTR 12, [2008] EWHC 3304 (Admin);
8. At paragraph 15.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.