Half-Time Submission and Bad Character Risk
You are defending Mr Okafor in a trial for criminal damage to a neighbour's car. The prosecution's only witness is the neighbour, Mrs Green, who says she saw Mr Okafor kick the car at 11pm from her bedroom window 20 metres away under street lighting. There is no CCTV. Mr Okafor was arrested 10 minutes later at his home. He says he was in bed and his partner will support him. Mrs Green has poor eyesight and had been drinking. At the close of the prosecution case, the judge asks whether you have a submission of no case to answer. Your client has a previous conviction for criminal damage from 2019. He insists that you make the submission and does not want to give evidence because he is nervous. If the submission fails, the prosecution may apply to admit the previous conviction. The partner's evidence is available but she is anxious.
1. Should you make a submission of no case? Explain the legal test and the tactical risks.
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Test. R v Galbraith: a submission succeeds only if there is no evidence on which a jury, properly directed, could convict, or if the evidence is so tenuous or inherently weak that no reasonable jury could convict. Mrs Green's identification is positive evidence. Poor eyesight, distance, lighting and alcohol are matters of weight for the jury, not a complete absence of evidence.
Advice. The submission is unlikely to succeed unless the identification is so poor that it is no evidence at all. You can still make it if your client insists and you consider it arguable; if it fails, you may call evidence.
Risks. Making a submission may prompt the prosecution to apply to admit the 2019 conviction, although they can apply anyway. It may also signal that the defence case is weak. If you make it, do so concisely: identify the specific weaknesses and submit that no jury could safely rely on the identification. Do not mislead the court by pretending the evidence is weaker than it is.
Client care. Explain the risks and record his instructions. If you think it is hopeless, advise against it and note that advice.
2. If the submission fails, should Mr Okafor give evidence? How do you handle the bad character risk?
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Give evidence? The decision is his, but advise. His alibi is his defence; if he does not give evidence, the jury may draw an adverse inference under s.35 CJPOA 1994 and the partner's evidence will carry less weight.
Bad character. The 2019 conviction is for the same offence (criminal damage), so the prosecution may apply under s.101(1)(d) and s.103(1)(a) to admit it as propensity evidence. If he gives evidence, he can be cross-examined about it. The judge may exclude it under s.101(3) or s.78 if its prejudicial effect outweighs its probative value, but a recent same-offence conviction is likely to be admitted.
Preparation. Prepare him for the cross-examination: he should acknowledge the conviction, explain it briefly and not minimise it. Do not let him attack Mrs Green's character unnecessarily, or s.101(1)(g) may apply.
Partner. Call the partner if her evidence is credible; her evidence supports the alibi.
Conclusion. Advise that giving evidence is usually in his interests; not giving evidence would leave the alibi unsupported and risk an adverse inference.