Evidential Lacuna – a Barrister’s ‘Loophole’ Story.


Ok, so I’m asked to tell you about a case I did.

One thing that the public have latched onto is what they term as ‘loopholes’. Often people are prosecuted and they want to avoid the case by some kind of loophole.

I can give you an example of a case I did quite a long time ago; When I was asked to defend a motorist in North London who’d been involved in a collision and he was prosecuted for driving without due care and attention. Now it’s my duty to advise my client as to the strength of the evidence because there’s no point in contesting a case if they’re only going to be convicted. Because it wastes your time, it wastes the court’s time, and it costs more. After all, you have to pay a costs order at the end of the day and the costs are likely to be more if you’ve contested the case.

Having said that, if i advise someone in private that ‘the evidence looks strong, and what you’re telling me doesn’t really amount to a defence’ but that person wants to plead ‘not guilty’ anyway, then it’s my duty to represent the client in accordance with the instructions you’ve given me.

For example, if you say “I caused that collision but I don’t consider that I was driving without due care and attention” – it might be nonsensical but if those are your instructions and you insist on pleading not guilty then I will represent you.

Now, in this particular case, the client told me he wanted to plead not guilty, I couldn’t really see a defence – it was quite clear there were prosecution witnesses who were going to say that my client had driven into the back of another car. But of course the trial started, based on the clients instructions, and I found myself cross-examining witnesses.

I noticed, after a little way into the trial that the prosecution advocate had not elicited the name of my client; for example, he had referred to ‘the driver of the Ford Cortina’ as opposed to the driver of the Ford Cortina being Mr X.

Now, there was a long way to go in the trial and there were many opportunities for him to elicit evidence of the identity of my lay client. But noticing that he hadn’t’ sought to identify him with the first witness made me think that it’s always possible that we’ll get to the end of the prosecution case and he still won’t have done it. I didn’t think it very likely, but it’s my duty as a defence advocate to keep my eyes and ears open, and see if i can spot a “loophole”.

What I did in this particular case was, I tried to give the Crown and the Court a false sense of security. So, I didn’t aggressively examine the prosecution witnesses, I didn’t challenge their accounts at all, in fact, but I didn’t refer to the driver of the Ford Cortina as Mr X, I simply referred to him each time i asked a question as “The driver of the Ford” or “The driver of the Cortina” or “The other driver”.

One way and another, we got all of the way through the prosecution case without anybody eliciting the name of the driver of the Ford Cortina, so there was no formal evidence of his identity. At the end of the prosecution case, rather than call the defendant to give evidence in his own defence, I made a submission to the Court that there was no case to answer, based on the fact that there was no evidence that the man in the dock had been the man driving the Ford Cortina. Although the prosecutor opposed that application, the Court was obliged to accede to the application because no evidence had been called. So, therefore, my lay client was acquitted, and furthermore, a costs order was made in his favour. So my lay client went home a very happy man having been acquitted, having got an order for his costs, and the prosecutor looked a rather silly man. So there’s an example of how, when it appears all is lost and there is no way out, there might be. If you keep your eyes and ears open, the prosecutor might make a mistake.

Now I certainly don’t advocate contesting cases where the evidence is strong, and there’s no clear defence on the face of the papers, but if my lay client insists that he wants to plead not guilty, so long as he doesn’t expect me to misrepresent his instructions, then i’m prepared to, and obliged to represent my lay client. So that’s one example of a loophole that’s always stayed with me.