The appellant had served a Defence Statement, as required by section 6A of the Criminal Procedure and Investigations Act 1996 (as amended) on 30th November 2016, in which he said that a set of his car keys had gone missing two weeks before the incident. However, neither the contents of the Defence Statement, nor what was described as the "stolen keys defence" was mentioned during the trial and it formed no part of the defence which was advanced before the jury.
It is common ground between the prosecution and the defence that the judge was in error in referring to the contents of the Defence Statement. The error should have been immediately apparent and the judge should have been informed of his error.
It is clear that the judge made a mistake. He then went on to repeat his mistake as to the nature of the defence and to undermine it. His correction was short and acknowledged his mistake, but it did not cure the error that had been made. The appellant was entitled to have his defence placed before the jury. His defence was that the car had been stolen during the afternoon and evening of 25th March. It did not cure the harm done to the defence simply for the judge to admit that he had made a mistake and remind them that it was for the prosecution to prove the case.