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.

“Midnight Charge” – a barrister’s loophole story

[youtube http://www.youtube.com/watch?v=rpAITIQK5lg?rel=0]

So, I’ve been asked to tell you another “loophole” story.

I was asked to defend a man who had been in a road traffic accident shortly after midnight. The accident had occurred in North London. There were quite a few prosecution witnesses who were going to give evidence against my lay client, but my lay client insisted he wasn’t guilty. I thought the evidence was strong, but my lay client insisted on pleading ‘not guilty’ despite the advice I gave him. Therefore, the case commenced and the early witnesses for the Crown said that the incident had occurred a few minutes after midnight. However, upon closer cross-examination, it transpired that although they had said that in their written statements the time that had been given for the accident had actually been provided by the ambulance services when they’d arrived. The eye witnesses (those who were at the scene initially) said the accident had actually occurred a few minutes earlier, perhaps 10 or 15 minutes earlier (prior to the arrival of the ambulance).

Now, there’s a rule in existence about time limits in summary matters. Broadly speaking, an‘Information’ must be laid within 6 months of the offence being committed. An‘Information’ is a formal collection of details about an allegation which are essentially submitted by the prosecution to the court. The information must be laid within 6 months of an offence.

Now, it always pays as an advocate to pay close attention to detail because you never know when that detail is going to assume much greater significance. One thing I’d noticed about this particular case at the outset was that the Information had been laid on the very last day of the time limit. It had been laid a full 6 months after the incident. Now that, in itself, didn’t provide a defence. It didn’t even weaken the prosecution. But, once the eye witnesses started saying there was a 10 or 15 min delay before the ambulance services turned up and, based on the fact that the Crown took the time of the incident as being about 7 minutes past midnight, it suddenly occurred to me that there could be a loophole in the offing.

So, I continued to cross-examine the witnesses and I elicited from all the civilian witnesses, or most of them, that there had been a 10 or 15 min delay before the ambulance services had turned up. It was established during the prosecution case that the time of the accident had been taken from the ambulance men. The ambulance men had made statements saying the time they’d arrived (which was about 7 or 8 minutes past midnight). I’d given the Crown and the court a false sense of security by asking, not silly questions, but by asking questions which made it seem as though the nub of the allegations weren’t being disputed. So they had no reason to be on edge or to be mentally sharp.

So, having noticed that the time of the accident in the Crown’s charge was based on the time the ambulance men had arrived and that the actual evidence in the case was that the accident had occurred 10 or 15 minutes before (they had arrived) I rose to my feet, at some point during the Crown’s case towards the very end, and, under the guise of being helpful to the court and the Crown, I suggested that the Crown apply to amend their allegation to the day before because the evidence had been that the offence had been committed just beforemidnight. So not seeing any harm in this, the prosecutor duly rose to his feet and applied to amend the charge to the day before. The court not understanding what was afoot, acceded to that application.

So, the charge now was that the offence had been committed one day earlier. Which meant of course that the information had been laid one day out of time, and no one else had noticed that, but I had. So upon the case for the Crown concluding I rose to my feet to make a submission of ‘no case to answer’. The submission was, in effect, that the information had been laid out of time, and, therefore the defendant was entitled to an acquittal. The prosecutor opposed the application. His submissions finished just as 1 o’clock was reached so we had to break for lunch. That gave the Magistrates time to consider their ruling. I left my bag in the well of the court – it was one of the old-style London Magistrates’ Courts. The court was being locked over lunch anyway and at 13:55 I came back to court when the court was open. As the prosecutor walked in I noticed he walked into my bag not realising it was there. And I couldn’t help but notice that he kicked my bag! He didn’t realise it was my bag, or he wouldn’t have kicked it. But that was how frustrated he was because he fully expected the court to rule against him. The court came in at 2 o’clock and ruled against him. Obviously I felt a bit sorry for the prosecutor, but he should have been awake and he wasn’t. My client was acquitted and again a costs order was made in his favour.

So, that’s just an illustration of the fact that if your advocate is sharp, pays attention to detail, and, focuses throughout the case, that there might be a means of securing an acquittal even although the evidence is strong.

Now, I wouldn’t want it to be said that Mr Rupasinha makes a virtue out of securing acquittals for his lay clients through loopholes, but, if you think about it, it would be entirely wrong if I am defending a lay client and there’s a material gap in the Crown’s case, if I didn’t seek to secure the acquittal of my lay client based on that gap. What would the alternative be? Am I meant to keep it to myself and not mention to my lay client that there’s a loophole in the case? Should I side with the Crown and tell them without telling my lay client, “Actually there is a loophole there, do you want to close it?” No, of course not. As a defence advocate, when you are instructed to defend someone, you should do so to the best of your ability within the rules; and if you come to me, that’s what I’ll do.

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Markus Grossalber