Case No. 2007-04219-A8

[2004] EWCA Crim 2256, [2005] 1 Cr App R(S) 90, Judge LJ made it clear how the position of the kind that arose in this case should be dealt with. It is an important judgment, parts of which are summarised in paragraph 5-73 of the current edition of Archbold. It is necessary to refer only to paragraph 5 where Judge LJ said: "The third, and most difficult, situation arises when the Crown may lack the evidence positively to dispute the defendant's account. In many cases an issue raised by the defence is outside the knowledge of the prosecution. The prosecution's position may well be that they had no evidence to contradict the defence assertions. That does not mean that the truth of matters outside their own knowledge should be agreed. In these circumstances, particularly if the facts relied on by the defendant arise from his personal knowledge and depend on his own account of the facts, the Crown should not normally agree the defendant's account unless it is supported by other material. There is, therefore, an important distinction between assertions about the facts which the Crown is prepared to agree, and its possible agreement to facts about which, in truth, the prosecution is ignorant. Neither the prosecution nor the judge is bound to agree facts merely because, in the word currently in vogue, the prosecution cannot ' gainsay ' the defendant's account. Again, the court should be notified at the outset in writing of the points in issue and the Crown's responses. We need not address those cases where the Crown occupies a position that straddle two, or even all three, of these alternatives." 42. It seems to us that in the present case there was an overwhelming inference on the evidence of the finding of the gun, the silencer and the ammunition on a shelf in the premises that those items were there to protect the business. Rolls asserted that they were there for storage. Given the gravity of the conspiracy in this case and the serious aggravating feature of the possession of a firearm to protect the business if necessary, this was an issue where the Crown should have made it clear beyond peradventure that the basis of plea was not accepted. The judge should not have used the phrase that it cannot be “