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Cite as: [2000] EWHC Admin 316

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CHRISTOPHER JAMES JOLLY v. D.P.P. [2000] EWHC Admin 316 (31st March, 2000)

Case No: CO/1193/1999

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 31st March 2000

B e f o r e :
LORD JUSTICE KENNEDY
and
MR JUSTICE BUTTERFIELD

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	CHRISTOPHER JAMES JOLLY	Appellant
	- and -
	D.P.P.	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Nigel Ley (instructed by Byrne Frodsham & Co for the appellant)
Andrew Clarke (instructed by C.P.S. for the respondent)

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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE KENNEDY:
1. This is an appeal by way of Case Stated from a decision of the Stipendiary Magistrate for Cheshire, sitting in the Youth Court at Warrington, who on 4^th February 1999 heard an information which alleged that the appellant, on 27^th October 1998, drove a motor vehicle after consuming so much alcohol that the proportion of it in his blood exceeded the prescribed limit, contrary to Section 5(1)(a) of The Road traffic Act 1988 and Schedule 2 to The Road Traffic Offenders Act 1988.
2. Facts
At 2.15.a.m. on 27^th October 1998, the appellant was seen driving a motor vehicle along London Road, Warrington. He was followed, and when he stopped his vehicle in the middle of the road and got out, PC Thomas noticed a strong smell of intoxicants. The appellant was required to provide a breath test, which was positive. He was arrested, cautioned and taken to Warrington Police Station where he was required to provide two samples of breath. The lower sample contained 42 micrograms of alcohol, so the appellant was then given the opportunity to provide and did provide a sample of blood which was taken by a police surgeon and properly transmitted to the Forensic Science Laboratory. As to what happened thereafter, I read from the Case Stated :-
"Fiona Williams, a Forensic Scientist, gave evidence regarding the processing of the sample at the laboratory, and its analysis by gas chromatography. The sample showed 100 mgs, from which six were deducted, and a Certificate issued to the effect that the proportion of alcohol in the blood exceeded 94 mgs. The raw data from the gas chromatographs went directly into a computer which calculated and printed out the results of the analyses. A copy thereof was produced in evidence by Miss Williams."
It was contended by the appellant's solicitor in his final submission, after he had closed the appellant's case, that -
"The court could not rely upon the results of the analyses because there was no evidence to show that the computer used by Miss Williams to obtain those results had been working correctly at all times, as is required by Section 69 of The Police and Criminal Evidence Act 1984 and that it was now too late for that to be done, and that (the Magistrate) had no discretion to allow the respondent to recall Miss Williams, or to have a certificate produced to the court."
The respondent prosecutor submitted that the expert evidence of the method of analysis should suffice, failing which the court had a discretion to allow the prosecution to call further evidence to remedy a procedural defect.
After considering the authorities cited to him, the Magistrate allowed the prosecutor to recall the forensic scientist after the mid-day adjournment. Miss Williams then explained, as set out in paragraph 7 of the Case Stated, "that the laboratory did not issue certificates under Section 69 of The Police and Criminal Evidence Act 1984, but that she calibrated the machines every time she used them, after running through a series of standards and was satisfied that they were working correctly." As a result, the Magistrate "was satisfied from that evidence that the machines, including their computer chips, were working correctly, and that the analysis was correct".
The question posed for our consideration in this appeal is -
"Was I wrong to exercise my discretion by allowing the respondent to call evidence of the correct working of the computer after the close of the case?"
3. What had to be proved
Section 69(1) of The Police and Criminal Evidence Act 1984 is in these terms:
"In any proceedings a statement or a document produced by a computer shall not be admissible as evidence of any facts stated therein unless it is shown
a) there are no reasonable grounds for believing that the statement is inaccurate because of the improper use of the computer;
b) that at all material times the computer was operating properly ......"
In R v Sheppard [1993] AC 80, it was held that where the prosecutor wishes to rely on evidence set out in a document produced by a computer, there must be affirmative evidence as to the computer's reliability in accordance with the requirements of Section 69. It can be either oral evidence or a written statement tendered in accordance with paragraph 8 of Schedule 3 to the 1984 Act. As Mr Clarke, for the respondent, pointed out, evidence as to the proportion of alcohol in a specimen of breath, blood or urine is frequently given by means of a certificate pursuant to Section 16(1) of The Road Traffic Offenders Act 1988, and when that procedure is used, no further evidence to satisfy the requirements of Section 69 of the 1984 Act is required. That however was not the procedure adopted in this case, so affirmative evidence of compliance with the requirements of Section 69 was required. It follows that until Miss Williams was recalled, there was a gap in the prosecution case.
4. Too Late?
The simple question which arises, not for the first time, is whether after the defence case has been closed, it is too late for the gap to be closed. The starting point is clear enough. In our adversarial system, it is for the prosecution to identify the matters which have to be proved, and then to take such steps as are necessary to ensure that what is not admitted is proved by means of oral evidence or written evidence before the close of the prosecution case. That enables the defendant, before he opens his case, to know the totality of the case he has to meet. If an issue is raised for the first time during the defence case, the prosecution may be able to call evidence in rebuttal, but otherwise once the prosecution case is closed, it should remain so. But what if, perhaps by oversight or for some other reason, the prosecution fails to adduce some necessary piece of evidence before it closes its case, and seeks later to have that evidence submitted. What attitude should be adopted by the court? To what extent should it regard the normal structure of a criminal trial as sacrosanct, and to what extent should it have regard to the wider interests of justice - the need to ensure that those who are defendants are required to answer the full weight of the potential case against them, as well as the need to ensure that no defendant is unfairly prejudiced by having to meet additional prosecution evidence at a late stage?
With the assistance of counsel, we have looked at a number of authorities, and it is, I believe, helpful to consider some of them in chronological order, because that helps to show how the law has developed. I omit some earlier authorities which have not been fully reported, and which, as it seems to me, add nothing to what is said in later cases, so I start with R v Tate [1977] RTR 17. That was an appeal to the Court of Appeal, Criminal Division from a decision in the Crown Court in a driving with excess alcohol case. At the close of the prosecution, the appellant stated that he would not give or call evidence. He then submitted that the jury should be directed to consider only the admissible evidence of the analyst called who stated in cross examination, that two of the experiments had been carried out by a colleague. The results of those experiments were, therefore, hearsay and inadmissible. The trial judge then permitted the second analyst to be called, and the appeal was dismissed. At 22C Lawton L.J. said:-
"Since 1911 there have been a number of cases before this court and its predecessor in which the problem has had to be considered. It suffices, we think, to say without going through the cases in detail, that it is now clearly established that the trial judge has a discretion whether he will allow the prosecution to call any more evidence after they have closed their case. The exercise of discretion will not be interfered with by this court unless it has been exercised either wrongly in principle or perversely."
Lawton L.J. then went on to consider the width of the discretion and how it ought to be exercised. In that context he referred to R v Pilcher [1974] 60 Crim.App.R. 1 where, after some evidence had been given for the defence, the prosecution was allowed to call an additional witness. At 22H Lawton L.J. continued:
"The trial judge, who gave leave for the witness to be called, exercised his discretion on the basis that the material consideration was whether the interests of justice would be best served by allowing the witness to be called. This court in R v Pilcher had judged that was too wide an approach, and that the court had to bear in mind the principle that the prosecution case should be brought to an end before the defence was called on to meet that case. This court, of course, accepts that principle. Courts should be alive to the dangers of allowing the prosecution to call witnesses whose evidence the defence until that stage of the trial, had no opportunity of considering."
After referring to the facts of the instant case, Lawton L.J. continued at 23C:-
"On these very special facts, it seems to us that the exercise of the Judge's discretion did not step outside the narrow limits of the discretion which a judge can exercise in allowing the prosecution to call further evidence. There was no prejudice to the appellant in this case. If there had been even a possibility of prejudice to the appellant, the court would have taken the view that the judge's exercise of discretion was wrong."
As Mr Ley, for the appellant, points out, Tate was a decision on appeal from the Crown Court, but its importance lies in the fact that the prosecution was allowed to adduce further evidence after the defendant had closed his case.

Morris v Matthews [1981] JP 233 was an appeal to this court. In a case concerning a charge of theft, the prosecution omitted to read a statement from the owner of the property, which statement had been served on the defence pursuant to Section 9 of the Criminal Justice Act 1967. When it was submitted that there was no case to answer, the court allowed the statement to be read, and in this court Lloyd J., with whom Lord Lane C.J. agreed, said:-
"The discretion is not limited to cases where what has been omitted is merely formal or technical. It includes matters of substance. The essence of a discretion is that it can be exercised in more than one way. It must always, of course, be exercised judicially. But there is no case for arguing that the discretion was not exercised judicially here. In addition, this particular discretion must be exercised carefully, having regard to the need to be fair to the defendant and to reach finality."
That brings me to MacDonald v Skelt [1985] RTR 321, another decision of this court where, at the close of the prosecution case, it was submitted that the defendant had no case to answer because there was insufficient evidence that the blood specimen taken from him and that analysed by the Scientific Officer were the same. The Justices ruled in favour of the defendant, but the prosecutor was then allowed to re-open his case and called evidence that the specimen taken and the specimen analysed were the same. On appeal this court rejected the argument that the Justices were functus officio. Taylor J. with whom May L.J. agreed, said at 327A:-
"For there to be a state of functus officio, the Justices would have to indicate clearly that they had reached a conclusion on the issues which were being argued and, further, that in consequence of their conclusion they were giving a decision on the outcome of the case. Merely for them to have expressed the first half of that pair of conclusions would not, in my judgment, be enough to indicate that they had dismissed the case and were therefore functus officio."
As to whether the Justices were entitled to allow the prosecutor to re-open his case, Taylor J. referred to what was said in Tate and at 328(B) he continued:-
"What is said is that this was not a matter which was a technicality, it was a matter of substance. It may be that at one time that distinction was a distinction which had a valid application in this field, but from the passage I have just cited, it is clear that the judge had a general discretion and that the Justices here had a general discretion as to whether they would allow the prosecutor to call any more evidence after closing his case. In my judgment, the decision here of the Justices to allow the prosecutor to re-open his case was neither perverse nor wrong in principle and their exercise of discretion cannot be faulted. It is relevant to consider that no point had been taken on behalf of the defendant during the evidence given on behalf of the prosecutor as to the sample being the right sample, or any possible mistake in that regard. In the circumstances justice required that the Justices should give serious consideration to the application made on behalf of the prosecutor. For my part, I can find no grounds for saying that they came to the wrong conclusion."
In Francis [1990] 91 Cr. App.R. 271 the prosecution omitted to prove that the person standing at No.20 on an identification parade was the appellant, but when a submission was made at the end of the prosecution case, the judge granted leave for the evidence to be adduced. On appeal it was argued that once the prosecution had closed its case, additional evidence could only be admitted to rebut an issue which arose ex improviso or to address a mere formality. In the light of the authorities to which I have already referred, that ground of appeal was clearly hopeless. At 274 Lloyd L.J. set out propositions arising from earlier authorities, the sixth of which is:-
"The earlier the application to admit the further evidence is made after the close of the prosecution case, the more likely it is that the discretion will be exercised in favour of the prosecution."
At 275 he added a seventh proposition:-
"The discretion of the judge to admit evidence after the close of the prosecution case is not confined to the two well established exceptions. There is a wider discretion. We refrain from defining precisely the limit of that discretion, since we cannot foresee all the circumstances in which it might fall to be exercised. It is of the essence of any discretion that it should be kept flexible. But lest there be any misunderstanding and lest it be thought we are opening the door too wide, we would echo what was said by Edmund Davies L.J. in the Doran case (1972) 56 Crim.App.R. 429 at 437 that the discretion is one which should only be exercised outside the two established exceptions on the rarest of occasions."
That does perhaps beg the question of how the rarest of occasions are to be identified.
In Munnery [1992] 94 Crim.App.R.164 the charge was burglary, and the prosecution omitted to adduce evidence that the appellant was one of those who carried cartons out of Liberty's department store. A submission was made at the end of the prosecution case, and next day, before that was ruled upon, the prosecution was permitted to re-open its case and bridge the gap. Mustill L.J. reviewed a number of authorities, and at 172 he concluded:-
"Quite clearly there is nothing in these decisions to sustain the argument for the appellant that the law admits of only two situations in which further evidence may be called, and that the Court in Francis was wrong to open up a more general discretion in its proposition (7). Quite the reverse. They demonstrate, as would be expected, that the judge must be left with some degree of freedom to meet the various unpredictable problems which may arise during a trial. Our only hesitation is whether the extra cases might perhaps have led the court to state the seventh proposition in rather less restrictive terms. On balance we think not, although it might perhaps be expanded by the addition, after the concluding words, of ".....especially when the evidence is tendered after the case for the defendant has begun". What matters is that the judge should have in the forefront of his mind, the strictly adversarial nature of the English criminal process, whereby the cases for the prosecution and the defence are presented consecutively in their entirety. To depart substantially from the normal order of events, unless justice really demands, is liable to cause confusion and hardship. Moreover, as was pointed out in Francis and again in the present case, the defendant may be prejudiced if his advisers have identified a gap in the prosecution's evidence, and have drawn attention to it by a submission of no case, only to find that the judge gives leave to put it right; whereas if they keep silent until the time to address the jury, the prosecution would have been too late.
These are important considerations which the judge must always bear in mind, but they are not necessarily conclusive. Tactics are a legitimate part of the adversarial process, but justice is what matters: justice to the public, represented by the prosecution, as well as to the defendant. Undeniably, if he had declined to admit the evidence, he would not have been criticised. The question is whether by letting it in, he stepped outside the reasonable bounds of the discretion and thereby created a real risk of injustice."
In James v South Glamorgan County Council [1992] RTR 312, the charge was supplying a motor vehicle in an un-roadworthy condition, and a prosecution witness (the person to whom the vehicle was supplied) had difficulty in locating the Court House. Before he arrived, the prosecution had closed its case, and the defendant had given evidence in chief, but there had been no submission. The Justices allowed the prosecution to re-open its case, and this court dismissed the appeal. The appellant and this court recognised that the Justices had a discretionary power to admit the evidence, but the issue was as to the circumstances in which that power should be exercised. The court reminded itself of what was said by Lord Parker C.J. in Pilcher (above) at page 5, namely:-
"Almost any additional relevant evidence will be of value to a jury, and if the only question one had to ask oneself was: was justice more likely to be done if the jury heard this evidence, the result may well be almost any fact arising late in a trial would be let in by an ever-widening door. It is clear that that is not the practice in our courts. The rule that the prosecution must finish their case once and for all before the defence starts is a very important and salutary one."
Leggatt L.J. then, at 317A stressed the exceptional nature of the contingency and the fact that the Justices seemed to have been satisfied that the evidence could be admitted without unfairness to the defendant.
R v Pydar Justices ex parte Foster [1995] 160 JP87 is a case on which I need not dwell because the evidence which was said to be missing turned out to be already before the court, but at 90B Curtis J. commented on the submission that a defending advocate was entitled to "keep his powder dry", saying:-
"Without any doubt whatsoever, it is the duty of a defending advocate properly to lay the ground for a submission, either by cross examination or, if appropriate, by calling evidence".
That brings me to R v Aylesbury Crown Court ex parte Lait 13th March 1998, unreported. The appellant was convicted of driving with excess alcohol and appealed to the Crown Court. As in the present case the prosecution failed to call evidence to meet the requirements of Section 69(1) of The Police and Criminal Evidence Act 1984, and when that point was taken by Mr Ley, after he had closed the appellant's case, the Recorder allowed the prosecution to re-open its case. In this court, Pill L.J. having referred to Francis and Munnery found that on the facts of the case before him, the Crown Court:-
"did step outside the reasonable bounds of its discretion in giving leave to the prosecution to call further evidence, and then in adjourning the case for re-hearing because of non-availability of Mrs Wright and the time of day."
At page 9 he said:-
"I cannot, in the circumstances of this case, find an obligation in defence counsel to raise the point, if he was going to raise it at all, while the prosecution witness was giving evidence."
A little later he continued:-
"The further relevant aspect of this case is the need, if the prosecution are correct, for a complete re-hearing. That was going to involve substantial delay and there is an interest in finality in this litigation. I regard that as a relevant factor which distinguishes this case from one where the evidence to be given could be given on the same day and as part of the same trial, though I am not saying that that factor has been the decisive one in this case."
I have to say that, speaking for myself, if that factor was not decisive, I find it difficult to see what was.
On 26^th July 1999, a different division of this court considered the appeal of Antonio Leeson. Once again Mr Ley waited until the end of the evidence before submitting that there was no evidence that the intoximeter device was correctly calibrated. The necessary evidence was then admitted. In this court Newman J. cited from the judgment of Lord Parker C.J. in Webb v Leadbetter [1966] 1 WLR 245 where he said that in the Magistrates Court:-
"As a general rule and in the absence of some special circumstances, it would certainly be wholly wrong for the Justices to purport to exercise a discretion to allow evidence to be called once they have retired, and, indeed, probably after the defence had closed their case."
In that case, as in this case, the point had not been raised, as it might have been, by way of cross examination of any witness, or by way of submission. As to that omission Newman J. concurred with what had been said by Curtis J. in Foster and at page 6 of the transcript he continued:-
"If the failure to adduce that evidence on the part of the prosecution is simply an oversight and by that I emphasise 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. 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."
Simon Brown L.J. agreed, saying:-
"This case seems to me to fall into that narrow band of cases where exceptionally Justices in their discretion may properly admit further evidence from the prosecution, even after the defence case has been closed. 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 in the defence, let alone any challenge, which might conceivably have alerted the prosecution to their failure to comply strictly with all the niceties of those proceedings. 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."
The appeal was therefore dismissed, and although a point of law was certified leave to appeal was refused by the House of Lords.

Faced with that extensive array of authorities, Mr Ley invited our attention to rule 13 of The Magistrates Courts Rules 1981, made pursuant to Section 144 of the Magistrates Courts Act 1980. The importance of the rule had, he submitted, been overlooked. It is headed "Order of Evidence and Speeches: Information", and, so far as relevant, it reads:-
"(3) At the conclusion of the evidence, if any, for the defence, the prosecutor may call evidence to rebut that evidence.
(4) At the conclusion of the evidence for the defence and the evidence, if any, in rebuttal, the accused may address the court if he has not already done so.
(5) Either party may, with the leave of the court, address the court a second time, but where the court grants leave to one party, it shall not refuse leave to the other."
As Mr Ley emphasises there is no provision for the prosecution to re-open its case, save by calling evidence in rebuttal. But, as was made clear by this court in Simms v Moore [1972] QB327, the Magistrates Courts Rules are directory not mandatory, and leave the Magistrates with an inherent power to regulate the procedure in their court. In that case the Justices' clerk had examined in chief witnesses called for the prosecution, and when it was pointed out in this court that rule 13 made no provision for that, Lord Parker C.J. said at 331D:-
"Justices have always had an inherent power to regulate the procedure in their courts in the interests of justice and a fair and expeditious trial."
At 332A he said:-
"Rule 13 of the Magistrates Courts Rules 1968, which was so much relied upon, is clearly only dealing with the order of the proceedings, but even if it purported to do more, it must be read, in my opinion, as merely directory and not mandatory."
It follows that Rule 13, even in its present form, contributes nothing of substance to the outcome of this case.
4. Conclusion

In my judgment any trial court must recognise that it is the duty of the prosecution to call its evidence before closing its case. But it is now beyond argument that there is a general discretion to permit the calling of evidence at a later stage, which extends in a Magistrates Court up to the time when the Bench retires. Before exercising that discretion, the Court will look carefully at:-

(1) the interests of justice overall, and in particular -
(2) the risk of any prejudice whatsoever to the defendant.

The result will be that the discretion will be sparingly exercised, but I venture to doubt whether it assists any longer to speak in terms of "exceptional circumstances". Each case, as the authorities show, has to be considered on its own facts, and so considered I have no hesitation in this case at the end of the argument, in answering the question posed by the Case Stated in the negative. It follows, as we indicated at the end of the hearing, that the appeal fails and is dismissed.
MR JUSTICE BUTTERFIELD: I agree.