Crown Prosecution Service, R (on the application of) v Norwich Magistrates' Court

In criminal summary proceedings, a magistrates’ court may permit the prosecution to reopen its case to remedy an evidential gap where doing so causes no injustice. The decision must be guided by the interests of justice and the overriding objective, not by an inflexible rule that every omission is fatal once the prosecution has closed its case.

The defence should identify the real issues at an early stage and must not reserve an undisclosed point for a submission of no case where it could readily have been addressed. Relevant considerations include prejudice, delay, the stage reached, and whether the evidential defect is a formality capable of prompt correction.

The Crown Prosecution Service sought judicial review of Norwich Magistrates’ Court’s decision to uphold a submission of no case to answer in proceedings against Luke Stebbings for an offence under section 4 of the Public Order Act 1986.

The prosecution had relied on CCTV footage and the defendant’s interview but, through an administrative error, had not called the police officer who could formally identify the defendant. Identification had not appeared to be in issue during case management or the prosecution opening. The magistrates refused an application to reopen the prosecution case and dismissed the charge. The central issue was whether that refusal was unlawful or irrational.

1. Judicial review allowed. The magistrates’ refusal to permit the prosecution to reopen its case was quashed. The charge was remitted to a differently constituted Bench for rehearing.

2. A magistrates’ court has a discretion to allow the prosecution to adduce further evidence to remedy a gap identified by a submission of no case, provided that the course causes no injustice. The discretion is governed by the interests of justice, as explained in Middleton v Rowlett [1954] 1 WLR 831 and illustrated by Saunders v Johns [1965] CLR 49.

3. The magistrates adopted an unduly narrow view of the interests of justice. Identification was not realistically disputed. Any need for formal proof was a readily correctable formality, capable of being dealt with by an admission, an agreed statement or brief oral evidence. The defence had not begun, there would have been no material prejudice, and no significant delay was required.

4. The Criminal Procedure Rules 2005, including rules 3.2 and 3.3 and the overriding objective, require parties actively to assist case management and identify the real issues at an early stage. A defendant who intends to take a positive point on identification should flag it during case management or, at the latest, when the prosecution opens its case. The defence should not simply wait until the prosecution has closed its case and then rely on the point.

5. The reasoning in Malcolm v Director of Public Prosecutions [2007] 2 Crim App R 1 was material. Criminal trials are not to be treated as a game in which every prosecutorial omission is automatically fatal. The overriding objective requires cooperation and early identification of the real issues.

6. Whether the defence acted deliberately or in bad faith was immaterial. The decisive matters were the absence of a genuine identification issue, the ease and speed with which the omission could be corrected, and the overwhelming balance of the interests of justice.

• Norwich Magistrates’ Court: refused the prosecution’s application to reopen its case and upheld a submission of no case to answer.
• High Court (Administrative Court): on judicial review, quashed the magistrates’ decision and remitted the charge to a differently constituted Bench for rehearing.