QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE SUPPERSTONE
|SOUTH LAKELAND MAGISTRATES' COURT||Respondent|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
Crown Copyright ©
"(1) Evidence (which in Scotland shall be sufficient evidence) of a fact relevant to proceedings for an offence to which this section applies may be given by the production of—
(a) a record produced by a prescribed device, and
(b) (in the same or another document) a certificate as to the circumstances in which the record was produced signed by a constable or by a person authorised by or on behalf of the chief officer of police for the police area in which the offence is alleged to have been committed..."
"(4) A record produced or measurement made by a prescribed device shall not be admissible as evidence of a fact relevant to proceedings for an offence to which this section applies unless—
(a) the device is of a type approved by the Secretary of State, and
(b) any conditions subject to which the approval was given are satisfied."
"(6) In proceedings for an offence to which this section applies, evidence (which in Scotland shall be sufficient evidence)—
(a) of a measurement made by a device, or of the circumstances in which it was made, or
(b) that a device was of a type approved for the purposes of this section, or that any conditions subject to which an approval was given were satisfied
may be given by the production of a document which is signed as mentioned in subsection (1) above and which, as the case may be, gives particulars of the measurement or of the circumstances in which it was made, or states that the device was of such a type or that, to the best of the knowledge and belief of the person making the statement, all such conditions were satisfied."
"(7) For the purposes of this section a document purporting to be a record of the kind mentioned in subsection (1) above, or to be a certificate or other document signed as mentioned in that subsection or in subsection (6) above, shall be deemed to be such a record, or to be so signed, unless the contrary is proved.
(8) Nothing in subsection (1) or (6) above makes a document admissible as evidence in proceedings for an offence unless a copy of it has, not less than seven days before the hearing or trial, been served on the person charged with the offence; and nothing in those subsections makes a document admissible as evidence of anything other than the matters shown on a record produced by a prescribed device if that person, not less than three days before the hearing or trial or within such further time as the court may in special circumstances allow, serves a notice on the prosecutor requiring attendance at the hearing or trial of the person who signed the document."
"22 ... It is worth repeating the observations of Jack J in his judgment in Picton  EWHC 1108 (Admin) at paragraph 9:
"In Essen this court considered the relevant law and it considered in particular the judgments of Lord Bingham in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates' Court ex parte Rowlands  QB 110 (then as Lord Bingham CJ). The following points emerge:
(a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.
(b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.
(c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.
(d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.
(e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.
(f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise if the party opposing the adjournment has been at fault, that will favour an adjournment.
(g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.
(h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court's duty is to do justice between the parties in the circumstances as they have arisen.""
"We have been asked by the prosecution to consider an application to re-open the prosecution case and adjourn for the re-attendance of witnesses.
In reaching our decision we have a difficult task of balancing the interest of dealing with cases expeditiously with the interest of achieving justice and maintaining confidence in the [Criminal Justice] system.
We are satisfied that a genuine mistake in the interpretation of section 20 as amended by s23 of the Road Traffic Act 1991 was made by the Prosecutor. It was clearly the intention of the legislation to have the witness produce the records and documents from the device.
Both parties were under the misapprehension that the requirement of a witness to attend made the record and certificate, as prescribed in sub section (1), inadmissible.
Seemingly, the document was not produced following an agreement based on a joint misapprehension.
Mr Lodge now concedes that the proper procedure would have been for the witness to produce a document [as prescribed] under sub section (1). A document purporting to be one of the type described is in existence. We believe that the interests of the court hearing that information and allowing the witness to be questioned on its contents outweigh any delay in this case.
The defendant did not attend today and will suffer no injustice in the hearing being adjourned. We note that the information was served in accordance with the legislation and there has been, to our knowledge, no breach of the Criminal Procedure Rules.
A case should no fall because of a simple and honest mistake.
We have noted the case of Southampton Magistrates Court and also the citations made by both parties."
"(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  EWHC 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)."