R v El-Kurd [2007] EWCA Crim 1888, [2007] All ER (D) 424 (Jul)
Where a judge has misdirected a jury owing to a defect in the indictment and the misdirection went to the heart of the issue between the defendant and the Crown, the conviction would be unsafe even if the indictment could have been amended so that the facts relied on would amount to the offence charged, even where the case against the defendant was strong.
Note that the Criminal Justice and Immigration Bill 2007 proposes that the ‘safety’ test be amended so that “a conviction is not unsafe if the Court of Appeal are satisfied that the appellant is guilty of the offence”.
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