The age of ambush may be over, but the principle remains
that the prosecution must always prove its case.
It is clear that the introduction of the Criminal Procedure
Rules ('the Rules') has had a significant impact on
criminal litigation. Of particular significance is the duty on the
defence to assist the court in identifying the issues in the case.
Case law from the Divisional Court has held that the defence may no
longer gain advantage by raising issues at the last minute. As
noted by His Honour Judge Denyer Q.C., it is fair to say that we
have reached the 'end of the ambush'.1
It is tempting, however, to exaggerate the effect of the
changes. The experience of practitioners suggests that the changes,
as significant as they have undoubtedly been, are being overstated
by prosecutors in the Magistrates' Court. In particular,
prosecutors are attempting to use the Rules and the associated case
law to lighten the burden borne by the prosecution to prove its
case. They
