The truth is out there

'A British criminal trial is not primarily an investigation to discover the truth, although the truth may sometimes be disinterred by chance,' wrote John Mortimer in his 1982 memoirs Clinging to the Wreckage. 'A criminal trial is a test of the prosecution evidence, a procedure to discover if the case against an accused person can be proved beyond reasonable doubt.'

Lord Justice Auld produced a different view in R v John Vincent Gleeson [2004] 1 Cr App R 29, saying: '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.'

How times have changed since Rumpole's day. The old darling would have 'a fit of the vapours' in the new age of case management. But just how well do Auld LJ's 'twin principles' fit together?

Early identification

The case of R (oao Firth) v Epping Magistrates' Court & Director of Public Prosecutions (Interested Party) [2011] EWHC 388 (Admin) suggests that by applying the managerialism of the CPR and requiring the defence to comply with the 'early identification of the issues', the defendant is being obliged to assist the prosecution in proving its case.

All criminal cases which come before the magistrates' court for first appearance require the defence to complete a case progression form. Thus, at a very early stage in proceedings, often before the case papers have been served, the defence is asked to state what the defence is and what issues will be raised at trial. In the new age of case management, the defence can no longer 'wait and see' or 'put the prosecution to proof' or take technical points on continuity at the close of the prosecution's case at trial. The Rumpolean days of the 'ambush defence' are over.

Miss Firth was charged with ABH. At the first appearance her advocate indicated on the case progression form that the issue was 'self-defence'. However, when the case papers were served at the committal for trial to the Crown Court, the prosecution had failed to serve any evidence of identification, which proved that it was indeed Miss Firth who was involved in the incident.

Thus, the prosecution had failed in the first of Auld LJ's twin principles. The defence did its job to test the prosecution's evidence and quite properly took the point. The magistrates then admitted the case progression form as evidence of an admission by the defendant, through the agency of her advocate, that she was present at the scene and had struck the complainant, albeit in self-defence.

Toulson LJ in the Divisional Court upheld the decision of the magistrates' court, explaining: 'It does not infringe against the principle that a defendant is not required to incriminate himself for the court to require that the nature of the defence is made plain well before the trial. Of course, any requirement for disclosure of the nature of the defence must be a fair requirement, in the sense that it must not be extracted from a defendant in circumstances where the prosecution have no case and are trying to adopt Star Chamber processes to try to build a case, but the rules are designed to make sure that this does not occur...

'So, I would reject the broad proposition that any requirement that a defendant should disclose his or her hand before trial is inherently repugnant.'

True it was that there were no Star Chamber tactics used here, but the defence advocate was turned into a witness against her client. And, of course, at later stages in criminal proceedings there are adverse inferences for failing to serve a defence statement or silence at trial.

Boldly go

So, how are defence advocates to approach case management issues in future? We are going to have to become bolder. Early identification of the issues does not mean 'premature' identification of the issues. There are no adverse inferences for failing to complete the case management form. Such inferences only arise from failing to serve a defence statement, which is only due after the prosecution has disclosed its case papers.

Perhaps defence advocates should attend court armed with a copy of Firth and write on the form: 'The issue at trial is whether the prosecution can prove its case, I am not instructed to make any factual admissions until after the prosecution has complied with its duty of disclosure.'

It may just be time for Rumpole's return.