Knowing Your Elbow From Your…

For me the past few weeks have been taken up by a sudden rash of prosecutions for breach of various planning controls, in particular a number of Tree Preservation Orders matters, in which I have been mostly instructed for the defence.

And in just about every case the same thing has happened.

The manner in which the prosecution have gathered and presented their evidence has completely ignored basic rules of evidence, procedure and well-known case law of some long standing.  Which results in an easy (and predictable) win for the defence, with prosecutions being stayed, defendants discharged and (sometimes) awards of wasted costs against the prosecuting authority.

The most astonishing thing about it all was how fundamental some of the mistakes have been – for example:

1. Including witness statements in bundles that were to be put before a tribunal of fact – a classic giveaway that whoever advised on the contents of the bundle does not know their criminal evidence & procedure;

2. Seeking to rely on evidence of motive, knowledge or intention in a strict liability case (where a defendant’s state of mind is irrelevant) – this evidence is inadmissible from the outset;

3. Charging defendants with contravening provisions which were not in force at the time the alleged offences were committed – check your commencement dates before issuing the Informations and Summons.

The obvious point being that, had the prosecution instructed a lawyer who regularly practised in criminal law none of those results would have gone the defendants’ way.  In the meantime, I’ll keep on taking the low-hanging fruit while I’m instructed for the defence…

Scott

About Scott Stemp
Barrister specialising in planning and criminal law

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