At the close of the prosecution case, the defendant’s counsel submitted that, following Nock, there was no case to answer. The prosecution sought to amend the indictment by adding an allegation of a statutory conspiracy, and to re-open the case, but the defendant objected that evidence had already been put on the original basis. The indictment was amended and the defendant convicted.
Held: The central question was whether when the defendant had an unanswerable defence, it was proper to leave his objection until the close of the prosecution case. Although such situations will always be fact sensitive, the judge had been correct in this case. Neither defence nor prosecution should be prejudiced by the faults or errors of their legal representatives. The prosecution’s mistake did not make a fair trial impossible. It was no longer permissible for defence counsel to delay identification of issues in the case.
Auld LJ said: ‘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.’
Judges:
Auld LJ, Grigson, Roderick Evans JJ
Citations:
Gazette 06-Nov-2003, Times 06-Nov-2003, [2003] EWCA Crim 3357, [2004] 1 Crim App R 29
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Director of Public Prosecutions v Nock 1978
There can be no conspiracy to defraud at common law where the object of the contended conspiracy would be impossible to perform. . .
Cited by:
Applied – Firth v Epping Magistrates Court Admn 3-Feb-2011
The defendant had faced a charge of assault in the Magistrates Court and had pleaded not guilty. She had indicated in the ‘trial issues’ form through her lawyer that her defence was self defence. The prosecutor then indicated that the charge was to . .
Cited – Director of Public Prosecutions v Meakin Admn 4-May-2006
Appeal against stay of prosecution as abuse of process.
Held: The appeal failed. Openshaw J said: ‘The concept of a fair trial involves fairness to the prosecution and to the public as well as to the defendant.’ . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Legal Professions
Updated: 14 April 2022; Ref: scu.187388
