Incorrect Charges (Wrong Charges)
Occasionally charges are laid that do not reflect the circumstances of the alleged offending; or they are laid using provisions that no longer exist because they have been abolished or amended by the Parliament.
If a person is charged with robbery, defined as theft by intimidation or force, instead of theft in a situation when there is no evidence that there was any intimidation or force, this would be an example of where the police have laid incorrect charges, although in this instance, a finding of guilt in relation to theft would be permissible as theft is an alternative verdict to robbery.
If incorrect charges are laid, then it would be rare to inform the prosecution at an early stage as this would give them the opportunity to cure the defect. If they then proceed to a hearing or trial with incorrect charges, it is usually at the time of the closing of evidence when a prosecutor might twig to the defect, at this time it is too late.
There are other circumstances this defence may be used, particularly in relation to alleged sex offences which occurred some time ago. Recent changes to the legislation mean that the prosecution will sometimes lay the more recent charge instead of the older one that applied at the time of the alleged offence. A perfect of example of when this can happen relates to indecent assault. This charge has changed multiple times over the last 70 years and sometimes the police will lay the charge based on the wrong legislation. At the bottom of the above article on indecent assault, you can see how many times that charge has changed.
Depending on the wording of the charge and depending on when the prosecution discovers the error, will determine whether the fact that incorrect charges have been laid, will lead to a withdrawal. Any forensic assessment of this type of defence should only be considered after careful consultation with an experienced criminal lawyer.