England and Wales High Court (Administrative Court) Decisions

1. MR J McGUINNESS (instructed by Crown Prosecution Service, Barnett/Haringey Branch, River Park House, 225 High Road, Wood Green, London N22 8HG) appeared on behalf of the Respondents.

2. MR N LEY (instructed by Shepherd, Harris & Co, 2 Cecil Court, London Road, Enfield, Middlesex EN2 6HH) appeared on behalf of the Appellant.

3. LORD JUSTICE SIMON BROWN: Mr Justice Newman will give the judgment of the Court.

4. MR JUSTICE NEWMAN: This is an appeal by way of case stated from the Haringey Justices.

5. On 6th October the appellant, Antonio Leeson, was convicted of driving with excess alcohol. The occasion in question occurred on 9th January 1998. He was stopped by police officers due to the manner of his driving; his eyes were glazed and his breath smelt of alcohol, and he provided a sample of breath which proved positive. At Tottenham Police Station a procedure was followed referred to as a "Book 116 procedure". He was asked the standard questions and he provided breath specimens by using an intoximeter device. The lower of the two readings provided was 53 micrograms in 100 millilitres of breath.

6. Evidence of the facts was given by Sergeant Lewis who had conducted the procedure at the police station. He was not cross-examined in the course of his evidence on the matters which centre upon this appeal. No challenge, for example, was indicated to the reliability of the device and there was no challenge or suggestion to him by way of enquiry as to the accuracy of the calibrations of the machine. The cross-examination of the officer comprised suggestions directed to establishing an emergency existed at the time, which it is not necessary for this court to develop, for Mr Ley, at the closing stages of his very full submissions to the Court, abandoned the point that had earlier been raised on that basis.

7. The appellant gave evidence in support of his factual defence to which it is no longer necessary for me to refer. Thus, it came to the end of the evidence in the case and the stage had been reached for submissions. Mr Ley who appears here and appeared below submitted that there was no evidence that the intoximeter device was correctly calibrated. He was correctly relying upon the absence of oral evidence or written evidence to the effect that the machine had been properly calibrated.

8. The course which then followed is the one which has given rise to the argument on the appeal. It is undoubtedly the case that it was for the prosecution to produce the printout in evidence. When Mr Ley had made his point, according to the case stated the following occurred: the "items" which included, as we understand it, the printout, "were handed to the legal adviser" -- I take that to be the clerk of the court -- and retained in the court file, but they were not "formally exhibited". The magistrates considered the position and took advice. The advice they received was that the Crown's case had not shown that the Lion Intoximeter was properly calibrated and they were referred to R-v-Pydar Justices ex parte Foster (1995) 160 JP 87.

9. Having been so advised, they would have been aware that it was a requirement, as I have already stated, for the prosecution to prove the proper calibration of the machine, but, being so advised, they permitted the "items" to be given to the clerk and to be taken into the court file. They were also advised:

10. In the next paragraph they go on to say:

11. The ground of complaint argued by Mr Ley based on this course of events is that if regard is had, first of all, to Rule 13 of the Magistrates' Court Rules 1981 the order of evidence and speeches is there set out. It reflects that which is so familiar to us all.

12. Sub-rule 2 of Rule 13 states:

13. Mr Ley submits that for the magistrates to exercise a discretion, the ambit of which he puts in question, to permit evidence to be put in after the close of the evidence in the case and in the course of the final speech by the defence is an impermissible exercise of discretion. He submits such a course is without authority from the cases. He has directed our attention to a considerable number of cases.

14. The position so far as discretion is concerned is, in my judgment, helpfully set out in a citation reported in Phelan v Back [1972] 1 AllER 901 where reference is made to Webb v Leadbetter [1966] 1 WLR 245. In that case Lord Parker LCJ, giving judgment on the question of the exercise of discretion when evidence has been concluded, said this:

15. I gratefully adopt that approach to discretion in these circumstances and conclude that the point raised by Mr Ley must be considered against the test as to whether there are special circumstances for the course that the magistrates took.

16. The magistrates, it is apparent, had certain points in mind as to the way in which the case had been conducted. They referred to the fact that Mr Ley did not cross-examine Sergeant Lewis on the calibration or the functioning of the machine. The magistrates no doubt also had in mind that the point which was being taken was as good as a point to be taken by way of a submission of no case to answer as it was a point available in a final speech.

17. In my judgment it is material in the exercise of discretion in cases such as this to have regard to the point at which the issue is raised.

18. In R-v-Pydar Justices ex parte Foster, to which I have already referred, Curtis J, who constituted the court along with my Lord, said this in relation to the way in which in another excess alcohol case had been conducted:

19. The spirit of that observation is one with which I generally concur. It may be that it would be pressing the matter too far, and that I do not do, to suggest that the submission must be made at the halfway point, namely by way of submission of no case to answer. That would be too broad a principle and open up an area of criminal jurisprudence which this case and these cases would not justify. But in my judgment it is highly significant that we are dealing with a much legislated area of law. These cases are, so far as Parliament has felt able, covered by legislative provisions to make the proof of matters of technical evidence or expert evidence readily provable. From time to time it is manifest, and this case is one of them, that the prosecution as an oversight neglect to do that which is incumbent upon them to do. In this instance to produce the printout in evidence which is held in court by a witness who has given oral evidence. Without the printout establishing the results of the breath specimens and the self-calibration of the machine to establish its reliability the case will not be proved. In this instance oral evidence of the specimens was given but as oral evidence has given about the self-calibration being reliable.

20. If the failure to adduce that evidence on the part of the prosecution is simply an oversight, and by that I emphasize an oversight in that the prosecution has not adduced evidence of that which they are in a position to call that day, either by producing the document or calling the witnesses, in my judgment particular considerations do apply. It would not, in my judgment, be consonant with the proper and due administration of justice in this particular field of criminal prosecution for there to be acquittals simply by reason of oversight in the sense that I have described. Justice will not be done if defendants are acquitted purely because of an oversight which was capable of being corrected there and then. The argument takes the canons of procedure to unjustified limits.

21. It must always be a matter for the magistrates to consider anxiously. In any particular case they will have to consider whether or not to exercise their discretion so as to permit the prosecution to fill the gap in their case. Mr Ley in this instance made no submission to the magistrates, for example urging upon them that it would be wrong for them, for any particular reasons which he could have advanced, to exercise their discretion to admit the documents. He frankly accepted that he did not even look at the documents and although he objected, he did not advance specific argument.

22. In my judgment the proper process of proceedings in a court of law is that matters are adumbrated and argued, not saved up to become the subject of application later. If, as it now appears, the issue in this case is, whether the magistrates wrongly exercised their discretion to permit the evidence to be called, that point should have been taken as a point at the time. I know not but it may well be that in the exercise of discretion the magistrates, having heard argument, would have taken a different view of the matter, but in my judgment it is quite impossible to say that they did not have such a discretion. Having regard to the facts, as I understand them to have been from the case stated, I can see no basis upon which it can be said their exercised their discretion incorrectly.

23. For those reasons, in my judgment, this appeal must be dismissed and I say no more about the other issue since

24. Mr Ley very realistically abandoned it.

25. LORD JUSTICE SIMON BROWN: I agree. This case seems to me to fall into that narrow class of cases where exceptionally justices in their discretion may properly admit further evidence from the prosecution even after the defence case has been closed.

26. Its hallmarks are these: first, the lacuna in the prosecution case which this further evidence filled was on the facts a purely technical one; second, the prosecution's failure to do what strictly of course they should have done, namely putting in the relevant document while the police officer was giving his evidence in respect of the readings, caused the defence no prejudice whatsoever; third, this is a case in which the defence stood by watching the point develop, carefully avoiding any hint of a defence, let alone any challenge, which might conceivably have alerted the prosecution to their failure to comply strictly with all the niceties of these prosecutions.

27. I do not say that the defence are bound to remind the prosecution of all matters required to be proved, but I do say that they can hardly complain if, in the result, Justices exercise their discretion so as to secure justice rather than allow a totally unmeritorious acquittal.

28. I too would dismiss this appeal and answer the question which was posed for the consideration of this court in each case in the affirmative.

29. MR JUSTICE NEWMAN: I agree so far as the answers to the questions are concerned.

30. MR McGUINNESS: My Lord, on behalf of the Director I seek an order for costs against the appellant.

31. LORD JUSTICE SIMON BROWN: What about that, Mr Ley?

32. MR LEY: My Lord, in a criminal jurisdiction your Lordships have far greater discretion than you do in a civil case. Costs do not automatically follow the event in a criminal case and I would submit that I accept for my client that the Director has been brought here by my client but, my Lord, if the Crown Prosecutrix had at the right time asked the sergeant the relevant questions, this case would never have arisen.

33. LORD JUSTICE SIMON BROWN: We see, I think, something in that. Mr McGuinness, with the best will in the world somebody ought actually to be making sure that in these cases Ts are crossed and the Is are dotted in the hope that it might just possibly persuade somebody to a reminder or whatever one does in these situations to ensure that this court is not wearied with this sort of passing point again. It might help if you do not get any order for costs.

34. MR McGUINNESS: Prevention is better than cure.

35. LORD JUSTICE SIMON BROWN: I am reminded by my Lord, there was some earlier listing, although I think it was in the event of avoiding, where, Mr Ley, your solicitors wrote, quite rightly, submitting a fair basis of failure of not notifying the prosecution of the fixture.

36. MR LEY: That is right, my Lord.

37. LORD JUSTICE SIMON BROWN: I think Roch LJ directed its removal from the list back on 18th June, but I think your solicitors were told that when the case was to be relisted the court was to be informed why your solicitor should not pay wasted costs.

38. MR LEY: My Lord, can I just take instructions on that, although I do not represent my solicitors; I represent Mr Leeson?

39. LORD JUSTICE SIMON BROWN: Were there any such costs incurred, because they avoided it the previous day, did they not?

40. MR McGUINNESS: My Lord, I was entirely unaware of it.

41. MR LEY: My instructing solicitor's understanding was the Crown did not know about it and therefore they did not incur any costs because they did not know about the case.

42. LORD JUSTICE SIMON BROWN: We will say no more on that score. No order for costs is the right answer. Very well.