Stopping the case where evidence contaminated
23.Article 12 deals with circumstances where bad character evidence has been admitted but it later emerges that the evidence is contaminated, that is, has been affected by an agreement with other witnesses or by hearing the views or evidence of other witnesses so that it is false or misleading.
24.In cases where a question has arisen, the current position is that the judge must draw that matter to the jury's attention and warn them that, if they are not satisfied that the evidence can be relied on as free of collusion, then they cannot rely on it against the defendant. If it becomes apparent that the evidence is so contaminated that it cannot be reasonable accepted as free from collusion, the judge should direct the jury not to rely on the evidence for any purpose adverse to the defence. This will continue to be the case.
25.This Article builds on existing common law powers for the judge to withdraw a case from the jury at any time following the close of the prosecution case and confers a duty on the judge to stop the case if the contamination is such that, considering the importance of the evidence to the case, a conviction would be unsafe. This is intended to be a high test.
26.Having stopped the case the judge may consider if there is still sufficient uncontaminated evidence against the defendant to merit his retrial or may consider that the prosecution case has been so weakened that the defendant should be acquitted.