Malcolm v Director of Public Prosecutions

Magistrates have a general discretion to admit further prosecution evidence after the prosecution has closed its case and, in exceptional circumstances, after the justices have retired. The discretion must be exercised with regard to the overall interests of justice and any risk of prejudice to the defendant. Criminal proceedings are not a game of procedural ambush. The defence should identify the real issues and challenge evidence at the proper time. Where a technical objection is first raised in final submissions, the prosecution may be permitted to recall a witness if the defendant can respond and suffers no injustice. The Criminal Procedure Rules’ overriding objective applies equally to summary motoring offences.

The appellant was convicted by Barnet Magistrates’ Court of driving with excess alcohol, contrary to section 5(1)(a) of the Road Traffic Act 1988. She had raised a defence of duress of circumstances or necessity.

After the parties’ final submissions, the magistrates concluded that the prosecution had not proved that the warning required by section 7(7) had been given. Before announcing a dismissal, they allowed the prosecution to recall the custody sergeant. He supplied further evidence about the warning and the breath-analysis printout. The magistrates convicted the appellant and found special reasons not to disqualify her.

The appeal by case stated concerned whether the magistrates had been entitled to admit the further evidence after retiring and whether they could direct the witness to the relevant parts of the pro-forma document.

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

2. Magistrates possess a general discretion to permit a criminal case to be reopened and further evidence to be called. The discretion is narrower after the bench has retired, but it is not extinguished. Special circumstances may justify its exercise at that stage.

3. The controlling considerations are the overall interests of justice and, in particular, whether the defendant will suffer prejudice. The prosecution normally must complete its case once and for all, but that general rule does not require an accused person to obtain an acquittal through a procedural omission which can fairly be remedied.

4. The defence should identify the real issues and challenge the prosecution evidence at the proper stage. Under rule 3.3 of the Criminal Procedure Rules 2005, the parties must assist the court’s case management, including the early identification of the issues. Raising the section 7(7) objection for the first time in final speech, without cross-examining the sergeant or objecting when the evidence was tendered, amounted to an improper defence ambush.

5. The magistrates were entitled to recall the sergeant. The appellant could have been recalled to dispute his evidence and did not do so. The evidence was therefore admitted without injustice. The overriding objective in rule 1.1 of the Criminal Procedure Rules, including dealing with cases justly by acquitting the innocent and convicting the guilty, supported that conclusion.

6. The court disagreed with R (Traves) v DPP, holding that it was wrongly decided and inconsistent with MacDonald v Skelt. It was also proper for the prosecution to take the witness to the relevant markings on the pro-forma document.

The appeal was brought by case stated from the decision of Barnet Magistrates’ Court dated 18 August 2005. The High Court dismissed the appeal and answered both questions affirmatively.