QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE STANLEY BURNTON
| NARINDER MALCOLM
|- and -
|THE DIRECTOR OF PUBLIC PROSECUTIONS
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Benjamin Aina (instructed by the CPS) for the Respondent
Hearing date: 30 January 2007
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Stanley Burnton J :
We were of the opinion that Ms Malcolm had been properly warned of the consequences of failing to provide a sample, that she had so provided a sample, and the copy of the printouts was admissible to prove she was over the prescribed alcohol limit.
We are also of the opinion that whilst the defence of duress was available to her prior to her stopping at the phone box, the decision to drive on from that place knowing Police had been informed and had told her to wait, and without having seen Mr Killen since leaving her mother's property, was not from an objective standpoint reasonable or proportionate to avoid what we accept had been a frightening and upsetting incident.
Accordingly we convicted the Appellant.
(1) Were we right to exercise our discretion to admit further evidence after we had started to consider our verdict, and had returned to court and started to announce our decision on the point of law concerning s.7 (7) RTA 1988?
(2) When Sergeant Webster said he had no note of the printout having been served on the Appellant, were we right to allow the Prosecutor to draw his attention to the fact that he circled a pro-forma document saying that the Appellant had accepted a copy of the printout?
The submissions of the parties
It is, of course, quite clear, under our law that he who affirms must prove; therefore, strictly, once the prosecution have closed their case, there would be no opportunity for them to call further evidence, subject of course, to evidence in rebuttal, with which we are not concerned. Nevertheless, it does seem to me that there must always be some residuary discretion in the court to allow, in particular circumstances, evidence to be called, but the manner in which that discretion is exercised must depend on the stage of the case. If one turns to indictable offences, it is perfectly clear that it has become now an established rule of law that no evidence can be called after the summing-up, and a judge who in his discretion sought to exercise his discretion by allowing evidence to be called at that stage would be acting entirely wrongly and the conviction would be quashed.
The same considerations do not wholly apply in magistrates' courts, but, nevertheless, 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 had retired, and indeed, probably, after the defence had closed their case.
At an earlier stage it may well be proper to exercise the discretion in favour of allowing a witness to be called, and indeed that was suggested in a decision of this court in Saunders v Johns (1964) The Times, Nov 19. In that case, this court held that it was too late to allow fresh evidence to be heard, since the defence had in fact closed their case, but in giving judgment, I see that I said:
"What might well, and indeed, should have happened in this case, was that as soon as a submission of no case was made, the prosecution themselves, or the court of its motion, could then have recalled the police constable and obtained this evidence, evidence which could show that there was a prima facie case."
I only mention that, because certainly the court there envisaged that at that stage of the case it might not be too late, and that in the exercise of its discretion the court might allow a witness to be recalled or to recall the witness themselves.
So far as this case is concerned I am quite satisfied that there was only one way in which any residuary discretion in the magistrates could have been exercised, the prosecution having closed their case, the defence having closed their case and they having retired. In those circumstances, I think that there is no option but to quash this conviction.
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.
… it is clear 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.
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.
15. … As it appears to me, the following principles of relevance to this case emerge from those authorities.
(1) The discretion to allow the case to be re-opened is not limited to matters arising ex improviso or mere technicalities, but is a more "general discretion" (see Kennedy LJ Jolly v DPP.
(2) The exercise of this discretion should not be interfered with by a higher court unless its exercise was wrong in principle or perverse (R v Tate  RTR 17 at 22C).
(3) The general rule remains that the prosecution must finish its case once and for all (R v Pilcher 60 Cr App R 1 at 5) and the test to be applied is narrower than consideration of whether the additional evidence would be of value to the tribunal (loc cit). The discretion will only be exercised "on the rarest of occasions" (R v Francis 91 Cr App R 271 at 175).
(4) The discretion must be exercised carefully having regard to the need to be fair to the defendant (Matthews v Morris  JP 262), and giving consideration to the question of whether any prejudice to the defendant will be caused (Tate at 23C).
(5) The courts have in the past differed as to whether the mere loss of a tactical advantage can constitute such prejudice. The defendant, having spotted and drawn attention to a gap in the case by way of submission, as to which he could have remained silent, and taken advantage of that gap at the close of the evidence, was thought in R v Munnery  94 Cr App R 164 at 172 to be an important consideration. However, later cases take a discernibly different approach. A different view was expressed in Khatibi v DPP  EWCA 83 Admin at 25 to 26 and in Leeson  RTR 385 and 391F-G.
(6) Criminal procedure while adversarial is not a game (see Leeson (loc cit), Hughes v DPP  EWHC Admin 2470, and the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight (Leeson).
(7) Of particular significance is the consideration of whether there is any risk of prejudice to the defendant (see Jolly and Tate).
Taking all these authorities and practices together, it seems to me quite plain that the justices were not entitled to allow the prosecution to adduce the further evidence after they had retired to consider their verdict. Mr Brabin concedes, and I accept, that if the application had been made before they retired to consider their verdict, it would have been irresistible. At any rate, a discretion to allow it could not possibly be criticised on appeal or by way of case stated. But that is a very different case from the present one. The moment of retiring to consider the decision is a critical point, after which only very special circumstances can allow further evidence to be called. Like the Divisional Court in Webb v Leadbetter, I consider that these were not such very special circumstances.
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.
It seems to me that if at the close of the prosecution case the defence is of the view that the evidence called on behalf of the prosecution does not disclose a prima facie case, then the defence should, in general, make that submission at the end of the prosecution case. If that submission succeeds, then the prosecution can apply to recall someone. That application may be granted or may be rejected, depending on the facts of the case, essentially on the question whether any prejudice to the defendant would be caused. But what seems to me quite indefensible is the submission by Mr Ley that the defence can, by reserving the submission until after the close of the defence case, put itself in a stronger position than it would have been had it made the submission earlier on. That seems to me to encourage a totally wrong approach to the administration of justice.
… it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.
(1) The overriding objective of this new code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes—
(a) acquitting the innocent and convicting the guilty; …
Lord Justice Maurice Kay :