Grocott, R. v

In a criminal trial, the prosecution should ordinarily present its case at the outset and must not ambush a defendant with evidence that it could reasonably have foreseen was needed. That principle operates within modern disclosure and case-management procedures. Cross-examination based on disclosed material may properly rebut an unanticipated and misleading assertion made by a defendant in evidence.

Improper cross-examination will not make a conviction unsafe unless its actual impact undermines the safety of the verdict. The appellate court will consider the nature and authenticity of the material, the defendant’s opportunity to answer it, its place in the prosecution case, and the strength of the admissible evidence.

The appellant was convicted at Inner London Crown Court of conspiracy to supply crack cocaine and sentenced to 16 years’ imprisonment. The prosecution case relied substantially on telephone records linking him to his co-accused during the latter’s trip to Barbados, and on evidence concerning cocaine found in suitcases.

During cross-examination, the prosecution relied on parts of disclosed telephone billing data omitted from the schedule initially put before the jury. The appellant contended that this was impermissible rebuttal evidence and an unfair attempt to improve the prosecution case after he had given evidence. The central issues were whether the questioning should have been permitted and, if not, whether the conviction remained safe.

1. Appeal dismissed. The court held that the convictions remained safe.

2. The general rule remains that a defendant should not be ambushed and that the prosecution should normally present its whole case at the outset. The principles underlying Scott (1984) Cr.App.R 79 and Pilcher (1974) 60 Cr.App.R 1 must, however, be applied in the setting of modern disclosure obligations, defence statements and the overriding objective.

3. The judge was entitled to permit questions about the appellant’s asserted ordinary use of the telephone to call his wife and children, and about his alleged dealings with the user of the white phone. The full billing data had been disclosed. The prosecution could not reasonably have anticipated the appellant’s misleading assertions about those matters, so the questions were proper rebuttal.

4. Questions concerning calls to Barbadian landlines went beyond the permission given and were wrong. The prosecution had overlooked their possible relevance when preparing its case. The court was also prepared to assume in the appellant’s favour that questions about contact with his niece should not have been introduced in that way.

5. Those errors did not imperil the verdict. The telephone records were authentic, the appellant was able to answer the questions, the judge did not refer to the disputed matters in the summing-up, and they were not major elements of a strong prosecution case. The form of some questions was imperfect, but it did not rest on an incorrect or unfair factual premise.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed: [2011] EWCA Crim 1962.

• Inner London Crown Court. The appellant was convicted of conspiracy to supply crack cocaine and sentenced to 16 years’ imprisonment.