Smith v Director of Public Prosecutions

A criminal court may permit the prosecution to reopen its case, but the discretion must be exercised judicially. The court must balance the interests of the defendant against the public interest in determining criminal allegations, while guarding against routine correction of prosecuting errors.

A judge should not prompt a dock identification where identification is disputed. If such an improper question may have influenced the fact-finder’s assessment of identification evidence, the conviction cannot safely stand.

The claimant appealed by way of case stated against his conviction for criminal damage by District Judge Morgan at Chester Youth Court. The prosecution witness identified the claimant as the offender. After the prosecution case had closed, the prosecution was permitted to recall the witness to give further identification evidence. The judge then asked whether she had seen the claimant that day, producing a dock identification despite a defence request that this should not occur.

The issues were whether the prosecution case was properly reopened and whether the improper dock-identification question rendered the conviction unsafe.

1. Reopening the prosecution case. The prosecution may be permitted to reopen its case and recall a witness after the close of its evidence. The discretion must be exercised within the limits identified in R v Rice [1963] 1 QB 857; prosecuting authorities should not be encouraged to remedy omissions routinely. The interests of the defendant must be balanced against the public interest in convicting those who have committed offences.
2. The District Judge’s decision to allow further identification evidence was not a plainly wrong exercise of discretion. The defence case had not opened, and the further evidence addressed a specific issue arising during the submission of no case to answer. The decision was therefore within the range of decisions open to the judge. Middleton v Rowlett [1954] 1 WLR 831 confirmed that the question is one of judicial discretion and that a refusal to reopen a case is not necessarily unjudicial.
3. Dock identification. The judge was wrong to ask the witness whether she had seen the claimant that day. The question was tantamount to a dock identification, and the court did not need to resolve the wider authorities concerning dock identification in summary trials and jury trials.
4. The error could not be treated as harmless. The court could not know what assessment the District Judge had made of the witness’s evidence. The circumstances gave rise to doubt about whether the judge had relied materially on the dock identification and whether the trial had been wholly fair. The conviction was unsafe.
5. The appeal was allowed. The two questions were answered by stating that the prosecution could reopen its case, but that the judge was wrong to ask the dock-identification question.

• Chester Youth Court: District Judge Morgan convicted the claimant of criminal damage on 19 April 2007.
• High Court (Administrative Court): On appeal by way of case stated, the court held that the prosecution could reopen its case but that the judge’s dock-identification question was improper. The conviction was held unsafe and the appeal was allowed.