Malcolm v Director of Public Prosecutions

Magistrates have a residual discretion to admit further prosecution evidence after retiring to consider their verdict, although special circumstances are required. The discretion must be exercised having regard to the overall interests of justice and any risk of prejudice to the defendant.

Criminal proceedings are not a forensic game. The defence should identify genuine issues in sufficient time for the prosecution and court to address them. A technical point first raised in final submissions may justify recalling a prosecution witness where the point was not put in cross-examination, the defendant can answer the evidence, and no injustice results. The overriding objective in Part 1 of the Criminal Procedure Rules 2005 applies equally to motoring offences.

The appellant appealed by way of case stated from her conviction by Barnet Magistrates’ Court on 18 August 2005 for driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988.

After the parties’ final submissions, the magistrates retired and indicated that the prosecution had failed to prove compliance with section 7(7). Before formally dismissing the case, they allowed the prosecution to recall the custody sergeant. He gave evidence about the statutory warning, the breath-analysis procedure and service of the printout. The magistrates convicted the appellant and found special reasons not to disqualify her.

The High Court considered whether the magistrates had been entitled to admit the further evidence after retiring and partially announcing their decision, and whether they had been entitled to direct the witness to the relevant markings on the pro-forma document.

1. The appeal was dismissed. Both questions in the case stated were answered affirmatively.

2. Magistrates have a general discretion to permit further evidence before retiring, subject to fairness. A residual discretion also exists after retirement, but its exercise requires special circumstances. The applicable approach is informed by the modern overriding objective that criminal cases be dealt with justly.

3. The discretion is not limited to correcting mere technicalities. Relevant considerations include the overall interests of justice, the need to avoid prejudice to the defendant, and whether the defence raised the issue at the proper stage. Criminal procedure is adversarial, but it is not a game in which an omission automatically defeats the prosecution.

4. The defence should make the real issues clear at the latest before the prosecution closes its case. If compliance with section 7(7) was disputed, the issue should have been raised when the evidence was given, including by cross-examination or objection to admissibility. Raising it for the first time in final speech was an improper ambush. The magistrates were therefore entitled to give the prosecution an opportunity to answer it.

5. The necessary special circumstances existed. The prosecution evidence had not been challenged, the appellant could have been recalled if she disputed the sergeant’s evidence, and no prejudice or injustice was shown. The magistrates were also entitled to direct the witness to the markings on the document and to admit his resulting evidence.

6. The court expressly disagreed with R (Traves) v DPP, holding that it had been wrongly decided and was inconsistent with MacDonald v Skelt.

• High Court (Administrative Court): On 27 February 2007, the appeal by way of case stated from the magistrates’ conviction was dismissed. Both questions were answered affirmatively.
• Barnet Magistrates’ Court: On 18 August 2005, the appellant was convicted after the magistrates admitted further prosecution evidence and concluded that the excess-alcohol evidence was admissible.