Director of Public Prosecutions v Batsho Nthoi

Section 78 of the Police and Criminal Evidence Act 1984 addresses unfairness caused by admitting particular prosecution evidence. It permits exclusion of evidence, but does not provide a general power to stop a trial or assess the consequences of excluding evidence under a separate fairness inquiry. Late disclosure is relevant, but wholesale exclusion of the prosecution case is disproportionate where the unfairness is temporal and can be remedied by an adjournment or by excluding the late evidence. A court should consider less drastic alternatives, including an adjournment, even without a formal application where the circumstances require it. Excluding the entire prosecution case without a clear legal basis may constitute an error of law.

The Director of Public Prosecutions appealed by way of case stated against the decision of Folkestone Magistrates’ Court on 11 March 2024. The magistrates excluded all prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984 after late service of evidence from a forensic nurse and a custody sergeant. The exclusion left the prosecution unable to proceed and resulted in the defendant’s acquittal on a charge of failing to provide a specimen of breath.

The questions were whether the magistrates should have adjourned of their own motion, whether either party was legally required to seek an adjournment, whether section 78 permitted exclusion of the whole prosecution case, and whether exclusion should have been confined to the late evidence.

1. Appeal allowed. The magistrates’ decision was set aside and the matter was remitted for a fresh trial before a differently constituted bench.
2. The power to adjourn a trial is conferred by section 10 of the Magistrates’ Courts Act 1980. It does not depend on an application by a party, although an application will ordinarily provide the context for its exercise. Neither party was legally obliged to apply for an adjournment merely because the magistrates had observed that a fair trial could not take place.
3. Section 78(1) of the Police and Criminal Evidence Act 1984 concerns the admission of prosecution evidence. The evidence must be inherently admissible, but may be excluded where, having regard to all the circumstances, its admission would adversely affect the fairness of the proceedings. Once the relevant evidence has been excluded, section 78 provides no further basis for stopping the trial by assessing the effect of that exclusion on the remainder of the case.
4. The unfairness identified was temporal. It arose from the late service of evidence and the lack of adequate opportunity for expert consideration and preparation. It was not an intrinsic feature of the evidence, nor was there an abuse of process argument that the defendant could not receive a fair trial at all. The appropriate responses included excluding the late evidence, proceeding on the remaining evidence, or adjourning the case in whole or in part.
5. The magistrates had not considered those alternatives or explained why the failure to comply with disclosure directions rendered all the evidence unfair. Section 78 is a fairness safeguard, not a means of punishing prosecution process failures or staying proceedings without an abuse of process application. Wholesale exclusion was therefore disproportionate and a decision no reasonable bench could have reached.
6. The court distinguished Halawa v Federation against Copyright Theft [1995] 1 Cr. App. R 21, because that decision concerned the timing and scope of a voir dire during a trial, rather than early exclusion of the entire prosecution case for late disclosure. The error-of-law standard was stated by reference to Chief Constable of Avon and Somerset Constabulary v O’Brien [1987] RTR 182.

• High Court (Administrative Court): appeal by way of case stated allowed. The decision of Folkestone Magistrates’ Court was set aside and the matter was remitted for a fresh trial before a differently constituted bench.
• Folkestone Magistrates’ Court: on 11 March 2024, excluded all prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984, resulting in the prosecution offering no evidence and the defendant’s acquittal.