'Proof by Case Management' and Other Myths about the Criminal Procedure Rules

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...