Khatibi v Director of Public Prosecutions

A magistrates’ court has a general discretion to admit further prosecution evidence after the close of the prosecution case, although the discretion must be exercised cautiously. The court must consider the interests of justice overall, including any risk of prejudice to the defendant, the stage reached, the nature of the evidence and whether it was reasonably available. Retirement to consider one discrete issue does not necessarily prevent further evidence being admitted on another issue expressly left open. A delay caused by such an adjournment will not breach the right to a fair trial where the evidence is short, known, unchallenged and the tribunal can refresh its memory from contemporaneous notes. Continuity of a specimen may be established by reasonable inferences from consistent evidence and identifying details on its label.

The appellant was convicted by the City of London magistrates of driving with excess alcohol, contrary to section 5(1) of the Road Traffic Act 1988. Blood analysis produced a reading above the permitted level.

After the prosecution had closed its case, the magistrates retired to consider a continuity submission. They later heard further argument concerning the admissibility of forensic evidence, allowed the prosecution to reopen its case, and adjourned for the assistant analyst to give evidence. The trial resumed five months later and the appellant was convicted.

On appeal by case stated, the Divisional Court considered whether the magistrates were entitled to admit the further evidence, continue after the delay, and conclude that the analysed blood was the appellant’s.

1. Further evidence: The magistrates had a general discretion to admit prosecution evidence after the close of the prosecution case. The discretion was subject to caution because of the adversarial structure of criminal proceedings, but tactics were legitimate only subject to the overriding requirement of justice. The relevant question was whether the interests of justice overall, particularly prejudice to the defendant, justified departing from the ordinary sequence.
2. The magistrates had retired only to determine the discrete continuity issue. They had expressly reserved the admissibility issue pending production of R v Tate [1997] RTR 17. Their retirement therefore did not prevent a later application to reopen the prosecution case on the separate forensic-evidence issue. The evidence was straightforward, already available, and did not require a search for new material.
3. Delay: The five-month adjournment did not make the trial unfair or breach article 6. The only additional evidence was known, short and unchallenged. The magistrates and counsel could refresh their memories from contemporaneous notes. The delay therefore caused no material prejudice.
4. Continuity: The magistrates were entitled to infer that the specimen analysed was the appellant’s blood. The label contained particulars consistent with the evidence of the arresting officer and doctor, including the appellant’s name, the time and place of sampling, and the officers involved. The contents of the label were admissible under sections 24 and 26 of the Criminal Justice Act 1988, and the evidential gap could properly be addressed through reasonable inference.
5. The appeal was dismissed. Each of the three questions was answered in the affirmative.

• High Court (Administrative Court): The appeal by case stated was dismissed. The court answered all three questions in the affirmative.
• City of London Magistrates Court: The appellant was convicted on 7 October 2002.