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In the very few and far between cases that the defendant puts forward an untenable defence isn't it better to do it in the lower court and have it comprehensively dismissed by a Jury, firstly it is actually quite cheap to do it there (especially under the current fee structure). Also sometimes the Public are ahead of the law, i live in the Midlands and recall all the Eco protesters being acquitted of the Criminal Damage charges they faced when they were told by the Judge that they should convict. It didn't feel right to them and they found them Not Guilty. To rule out an illegal defence would in my view be anti-democratic !