Malcolm v Director of Public Prosecutions

This is an appeal by way of case stated from the decision of Barnet Magistrates’ Court of 18 August 2005 convicting the Appellant of the offence of driving a motor vehicle on a road when the proportion of alcohol in her breath exceeded the prescribed limit, contrary to section 5(1)(a) of the Road Traffic Act 1988..

The only issue of substance raised on this appeal is whether the magistrates, who had retired to consider their verdict, and had announced their decision adverse to the prosecution on a point raised by Miss Calder in her final speech, were entitled to permit the prosecution to call further evidence to meet that point, as they did. Miss Calder, for the appellant, submitted that the magistrates had no such discretion, or that alternatively they could not lawfully have exercised their discretion as they did. Mr Aina, for the respondent, submitted that they did have a discretion and were entitled to exercise it as they did.

It is common ground, and appears from the Case Stated, that the trial focused on the defence of necessity or duress of circumstances raised on behalf of the appellant, rather than on the point raised by Miss Calder in her final speech.

The circumstances in which the defence of necessity or duress of circumstances arose appear from the appellant’s evidence to the magistrates as to how she came to be driving with excess alcohol, which of course was given after the prosecution evidence. She had gone to her mother’s home in the evening in question. Mr Killen, her mother’s boyfriend, was there. The appellant accepted that she had drunk alcohol. She gave evidence that Killen became aggressive that night and punched and kicked her. She eventually left. She was scared, particularly because he knew her home address, and wanted him arrested. She drove her car to Hale Lane where she stopped and called the Police from a public telephone. She said that she was told to wait where she was and the Police would come to her. She said that she was still scared, and decided to drive to another telephone box outside a petrol station.

The first prosecution witness was PC Oakley-Smith. He had been called to attend to a distressed female (the appellant) at the public phone box in Hale Lane in Edgware. He was then advised that she was driving away; he saw her driving her car and signalled her to stop. She did so. He noted she seemed upset. He smelt alcohol and the roadside breathalyser was brought and a test conducted by his colleague. He saw a positive indication that the proportion of alcohol in her breath was likely to exceed the prescribed limit.

PC Edwards gave similar evidence. In view of the indications of alcohol, he requested an electronic screening device. The second sample showed that the appellant’s breath was likely to exceed the prescribed limit, and he arrested and cautioned her and she was conveyed to Colindale Police Station.

Police Sergeant Webster gave evidence that he had authorised the appellant’s detention at the Police Station. He carried out the drink drive procedure, and whilst the appellant initially failed to provide a specimen, two samples were later obtained, the lowest of which was 91 micrograms of alcohol in 100 millilitres of breath. The appellant was detained until fit to be charged. Sergeant Webster was not cross-examined.

The appellant gave the evidence summarised above at paragraph 4. She accepted that she had driven her car and that she had been over the legal limit. She said that she would not have driven if she had not been attacked and in fear of further attack.

In her final speech, Miss Calder for the appellant submitted that there had been no warning as required by section 7(7) of the 1968 Act that a failure to provide a specimen might render the appellant liable to prosecution; that accordingly there was no admissible evidence of the analysis of alcohol in her breath; there was no admissible evidence that the correct procedure had been followed or that any print-out had been served; and the appellant had acted under duress of circumstances. The prosecution submitted that the section 7(7) warning was only required in a section 7 “fail to provide” case; that there had been no challenge to Sergeant Webster’s evidence; and that the case had been proved.

The magistrates retired to consider the submissions. They were unimpressed by Miss Calder’s submissions other than that arising from the fact that there had been no specific evidence that the section 7(7) warning had been given. At that stage they considered that the prosecution had failed to comply with the evidential burden under section 7(7); they had not come to any conclusion on the defence of duress or necessity, since they assumed the case would be dismissed on the ground of the lack of admissible evidence of the proportion of alcohol in the appellant’s breath.

The magistrates returned to court and gave their conclusions as summarised in the preceding paragraph. At that point, before the magistrates stated that they were dismissing the case, counsel for the prosecution addressed them. She requested leave to recall Sergeant Webster to give further evidence in order to remedy the deficiency in the prosecution case. She contended that there would be no prejudice, particularly since Sergeant Webster had not been cross-examined.

Miss Calder contended that “it was too late to hear further evidence, and the discretion of the court was not to be exercised in favour of a prosecutor who had neglected to do her job properly”.

The magistrates retired and having been referred to Stones’ Justices’ Manual and concluded that “in light of the authorities, the absence of any challenge to his evidence, and the overriding objectives expressed in Part 1 of the Criminal Procedure Rules 2005, that the Respondent be allowed to recall Sergeant Webster before we decided and announced our verdict”.

On being recalled to give further evidence Sergeant Webster referred to a copy of the original MGDDA and confirmed that he followed the pro-forma procedure word for word methodically. He believed he did warn the defendant of the consequences of failing to provide a specimen. He produced a copy of the readouts obtained from the breath analysis machine (Intoximeter) and confirmed it had been working properly. He confirmed the Appellant had been given a copy of the readout (when directed to the appropriate part of the form that had a marked response).

It appears from the Case Stated that the appellant did not give any further evidence to dispute Sergeant Webster’s.

On the basis of this evidence, the magistrates stated:

We were of the opinion that Ms Malcolm had been properly warned of the consequences of failing to provide a sample, that she had so provided a sample, and the copy of the printouts was admissible to prove she was over the prescribed alcohol limit.

We are also of the opinion that whilst the defence of duress was available to her prior to her stopping at the phone box, the decision to drive on from that place knowing Police had been informed and had told her to wait, and without having seen Mr Killen since leaving her mother’s property, was not from an objective standpoint reasonable or proportionate to avoid what we accept had been a frightening and upsetting incident.

Accordingly we convicted the Appellant.

Nonetheless, the magistrates sympathised with the appellant’s predicament and found that there were special reasons for not disqualifying her.

The questions for the opinion of the High Court are:

(1)

Were we right to exercise our discretion to admit further evidence after we had started to consider our verdict, and had returned to court and started to announce our decision on the point of law concerning s.7 (7) RTA 1988?

(2)

When Sergeant Webster said he had no note of the printout having been served on the Appellant, were we right to allow the Prosecutor to draw his attention to the fact that he circled a pro-forma document saying that the Appellant had accepted a copy of the printout?

The parties’ submissions are summarised in paragraph 2 above. Miss Calder, relying principally on the decision of this court in Webb v Leadbetter [1966] 2 All ER 114, to which I refer below, submitted that it was the duty of the prosecution to prove its case. Having failed to do so before the magistrates retired, they could not properly be given an opportunity to remedy their failure after they had retired. She accepted that if she had made her submission as to the lack of any evidence of compliance with section 7(7) at the end of the prosecution case, as part of a submission of no case to answer, the magistrates could and probably should have permitted Sergeant Webster to be recalled. She accepted that they had a discretion to permit him to be recalled even after her final speech. But it was too late to remedy the defect in the prosecuting case once the magistrates had retired.

Mr Aina’s submissions are sufficiently summarised in paragraph 2 above.

It is clear that the magistrates’ courts, like other courts, have a discretion to permit either party to a criminal case to adduce further evidence at any time before they retire, provided no injustice will be done. The position after they have returned to consider their verdict is, on the authorities, more restricted. In Webb v Leadbetter itself, a witness relied upon by the prosecution had not appeared at court when the case was due to start. The prosecution elected to proceed without the witness. The witness arrived late, after the justices had retired, having been delayed by the breakdown of his car. The magistrates were informed, and they returned to court and allowed the prosecution to call the witness. He was cross-examined, and it is to be assumed that the defence were allowed a further opportunity to address the court. The Divisional Court held that the justices had been wrong in law to allow the witness to give evidence for the prosecution after the defence had closed its case and the justices had retired to consider their decision. Lord Parker CJ, with whom the other members of the Court agreed, said:

It is, of course, quite clear, under our law that he who affirms must prove; therefore, strictly, once the prosecution have closed their case, there would be no opportunity for them to call further evidence, subject of course, to evidence in rebuttal, with which we are not concerned. Nevertheless, it does seem to me that there must always be some residuary discretion in the court to allow, in particular circumstances, evidence to be called, but the manner in which that discretion is exercised must depend on the stage of the case. If one turns to indictable offences, it is perfectly clear that it has become now an established rule of law that no evidence can be called after the summing-up, and a judge who in his discretion sought to exercise his discretion by allowing evidence to be called at that stage would be acting entirely wrongly and the conviction would be quashed.

The same considerations do not wholly apply in magistrates' courts, but, nevertheless, as a general rule and in the absence of some special circumstances, it would certainly be wholly wrong for the justices to purport to exercise a discretion to allow evidence to be called once they had retired, and indeed, probably, after the defence had closed their case.

At an earlier stage it may well be proper to exercise the discretion in favour of allowing a witness to be called, and indeed that was suggested in a decision of this court in Saunders v Johns (1964) The Times, Nov 19. In that case, this court held that it was too late to allow fresh evidence to be heard, since the defence had in fact closed their case, but in giving judgment, I see that I said:

“What might well, and indeed, should have happened in this case, was that as soon as a submission of no case was made, the prosecution themselves, or the court of its motion, could then have recalled the police constable and obtained this evidence, evidence which could show that there was a prima facie case.”

I only mention that, because certainly the court there envisaged that at that stage of the case it might not be too late, and that in the exercise of its discretion the court might allow a witness to be recalled or to recall the witness themselves.

So far as this case is concerned I am quite satisfied that there was only one way in which any residuary discretion in the magistrates could have been exercised, the prosecution having closed their case, the defence having closed their case and they having retired. In those circumstances, I think that there is no option but to quash this conviction.

Thus, magistrates have a discretion to receive further evidence after they have retired to consider their verdict, but special circumstances are required if the discretion is to be exercised. In Webb v Leadbetter, there were no such special circumstances. However, it does not follow from the decision of the Divisional Court in that case that if the prosecution had asked for an adjournment so that their missing witness could give evidence, and the justices had refused the adjournment, the decision of the Divisional Court would have been the same. The decision may have depended on the fact that the prosecution had elected to proceed without the witness.

In Jolly v DPP [2000] EWHC Admin 316, [2000] ALL ER (D) 444, Kennedy LJ, sitting in the Divisional Court, reviewed the authorities on the question whether the prosecution should be permitted to call further evidence after it had closed its case, and even after the defendant had closed his case. It is unnecessary for me to repeat that review in its entirety. For present purposes, the most relevant authority he referred to is MacDonald v Skelt [1985] RTR 321. In that case, at the close of the prosecution case before the magistrates it had been submitted that the defendant had no case to answer because there was insufficient evidence that the blood specimen taken from him and that analysed by the Scientific Officer were the same. The Justices ruled in favour of the defendant, but the prosecutor was then allowed to re-open his case, and he called evidence that the specimen taken and the specimen analysed were the same. On appeal the Divisional Court rejected the argument that the Justices were functus officio. Taylor J with whom May L.J agreed, said at 327A:-

For there to be a state of functus officio, the Justices would have to indicate clearly that they had reached a conclusion on the issues which were being argued and, further, that in consequence of their conclusion they were giving a decision on the outcome of the case. Merely for them to have expressed the first half of that pair of conclusions would not, in my judgment, be enough to indicate that they had dismissed the case and were therefore functus officio.

As to whether the Justices were entitled to allow the prosecutor to re-open his case, Taylor J. referred to the earlier case of R v Tate [1977] RTR 17 and indicated that the distinction between technicalities and matters of substance was obsolete. He continued:-

… it is clear that … the Justices here had a general discretion as to whether they would allow the prosecutor to call any more evidence after closing his case. In my judgment, the decision here of the Justices to allow the prosecutor to re-open his case was neither perverse nor wrong in principle and their exercise of discretion cannot be faulted. It is relevant to consider that no point had been taken on behalf of the defendant during the evidence given on behalf of the prosecutor as to the sample being the right sample, or any possible mistake in that regard. In the circumstances justice required that the Justices should give serious consideration to the application made on behalf of the prosecutor. For my part, I can find no grounds for saying that they came to the wrong conclusion.

Thus the defendant’s appeal was dismissed. It is right, as Miss Calder points out, that in MacDonald v Skelt the application to call further evidence had been made after a submission of no case to answer, rather than after the close of the defence case. Nonetheless, it is relevant that the justices were about to announce their decision to find the defendant not guilty.

In Jolly itself, the Divisional Court upheld the decision of a magistrate to permit the prosecution to recall a witness after the close of the defence case in order to meet a point not previously raised as to the reliability of the computer used to measure the amount of alcohol on the defendant’s breath. Kennedy LJ said:

But it is now beyond argument that there is a general discretion to permit the calling of evidence at a later stage, which extends in a Magistrates Court up to the time when the Bench retires. Before exercising that discretion, the Court will look carefully at:-

(1)

the interests of justice overall, and in particular –

(2)

the risk of any prejudice whatsoever to the defendant.

Kennedy LJ’s reference to the general discretion extending “to the time when the Bench retires” must in my judgment be seen not as suggesting that there is no discretion after the Bench retires, but as stating the law relating to the circumstances of the case before the Court. If he had intended to say that the Bench had no discretion to admit further evidence after they had retired, he would have said so when he referred to MacDonald v Skelt. In any event, that case was Divisional Court authority to the contrary.

In Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin) a Divisional Court, consisting of Kennedy LJ and McKay J considered another case in which magistrates had permitted the prosecution to repair omissions in their evidence after they had closed their case, following a submission of no case to answer. McKay J, in a judgment with which Kennedy LJ agreed, summarised the principles applicable as follows:

15.

… As it appears to me, the following principles of relevance to this case emerge from those authorities.

(1)

The discretion to allow the case to be re-opened is not limited to matters arising ex improviso or mere technicalities, but is a more "general discretion" (see Kennedy LJ Jolly v DPP.

(2)

The exercise of this discretion should not be interfered with by a higher court unless its exercise was wrong in principle or perverse (R v Tate [1997] RTR 17 at 22C).

(3)

The general rule remains that the prosecution must finish its case once and for all (R v Pilcher 60 Cr App R 1 at 5) and the test to be applied is narrower than consideration of whether the additional evidence would be of value to the tribunal (loc cit). The discretion will only be exercised "on the rarest of occasions" (R v Francis 91 Cr App R 271 at 175).

(4)

The discretion must be exercised carefully having regard to the need to be fair to the defendant (Matthews v Morris [1981] JP 262), and giving consideration to the question of whether any prejudice to the defendant will be caused (Tate at 23C).

(5)

The courts have in the past differed as to whether the mere loss of a tactical advantage can constitute such prejudice. The defendant, having spotted and drawn attention to a gap in the case by way of submission, as to which he could have remained silent, and taken advantage of that gap at the close of the evidence, was thought in R v Munnery [1992] 94 Cr App R 164 at 172 to be an important consideration. However, later cases take a discernibly different approach. A different view was expressed in Khatibi v DPP [2004] EWCA 83 Admin at 25 to 26 and in Leeson [2000] RTR 385 and 391F-G.

(6)

Criminal procedure while adversarial is not a game (see Leeson (loc cit), Hughes v DPP [2003] EWHC Admin 2470, and the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight (Leeson).

(7)

Of particular significance is the consideration of whether there is any risk of prejudice to the defendant (see Jolly and Tate).

Applying these principles, the Divisional Court upheld the magistrates’ decision.

After the hearing of the appeal, Miss Calder provided us with the judgment of Bean J in R (Traves) v DPP [2005] EWHC 1482 (Admin). That was another appeal from a decision of magistrates to allow the prosecution to remedy an omission in their evidence. The appellant had been prosecuted for driving while disqualified. Before the hearing in the magistrates’ court, a discussion had taken place between the legal representatives of the prosecution and the appellant, in the course of which the solicitor for the appellant had informed the solicitor for the prosecution that the fact that the appellant had been disqualified at the time in question was not disputed. In the course of their evidence, the prosecution called evidence to show that the appellant had been driving at the time in question, but they forgot to produce the memorandum of conviction and sentence relating to the disqualification. The defence solicitor did not call his client to give evidence, but instead submitted that there was no case to answer. The magistrates retired to consider their decision. Some time later, but before they had announced their decision, the prosecution solicitor sent a message to the magistrates asking them to return. They did so, and he then submitted that they should permit the prosecution to re-open their case and adduce the formal evidence of the disqualification. The magistrates agreed to do so; they received the evidence and convicted the appellant. Bean J allowed his appeal. He referred to Webb v Leadbetter, to Jolly and to Traves and said:

Taking all these authorities and practices together, it seems to me quite plain that the justices were not entitled to allow the prosecution to adduce the further evidence after they had retired to consider their verdict. Mr Brabin concedes, and I accept, that if the application had been made before they retired to consider their verdict, it would have been irresistible. At any rate, a discretion to allow it could not possibly be criticised on appeal or by way of case stated. But that is a very different case from the present one. The moment of retiring to consider the decision is a critical point, after which only very special circumstances can allow further evidence to be called. Like the Divisional Court in Webb v Leadbetter, I consider that these were not such very special circumstances.

In my judgment, Miss Calder’s submissions, which emphasised the obligation of the prosecution to prove its case in its entirety before closing its case, and certainly before end of the final speech for the defence, had an anachronistic, and obsolete, ring. Criminal trials are no longer to be treated as a game, in which each move is final and any omission by the prosecution leads to its failure. It is the duty of the defence to make its defence and the issues it raises clear to the prosecution and to the court at an early stage. That duty is implicit in rule 3.3 of the Criminal Procedure Rules, which requires the parties actively to assist the exercise by the court of its case management powers, the exercise of which requires early identification of the real issues. Even in a relatively straightforward trial such as the present, in the magistrates’ court (where there is not yet any requirement of a defence statement or a pre-trial review), it is the duty of the defence to make the real issues clear at the latest before the prosecution closes its case. In R v Pydar Justices ex parte Foster [1995] 160 JP 87 at 90B Curtis J. commented on the submission that a defending advocate was entitled to “keep his powder dry”. He said:

Without any doubt whatsoever, it is the duty of a defending advocate properly to lay the ground for a submission, either by cross examination or, if appropriate, by calling evidence.

That was not done in this case. At no time before her final speech did Miss Calder raise any issue as to the police’s compliance with section 7(7). Sergeant Webster was not cross-examined on the point. If Miss Calder wished to raise an issue as to whether the warning had been given, that matter should have been addressed in cross-examination. Indeed, Miss Calder’s failure went beyond an omission to cross-examine. If there was an issue as to whether the warning required by section 7(7) had been given, and she contended that as a result the officer’s evidence of the proportion of alcohol in the appellant’s breath was inadmissible, Miss Calder should have objected to the admission of the officer’s evidence as to the proportion of alcohol in the appellant’s breath. Miss Calder did neither of these things when that evidence was tendered by the prosecution, when she should have done so. In my judgment, in these circumstances she should not have been permitted to raise the issue under section 7(7) in her final speech unless the prosecution was given the opportunity to call evidence to deal with the point.

To take the section 7(7) point in the final speech was a classic and improper defence ambush of the prosecution. In Cook v DPP 2000 WL 33116475, the Divisional Court considered Jolly. Schiemann LJ said, at [33]::

It seems to me that if at the close of the prosecution case the defence is of the view that the evidence called on behalf of the prosecution does not disclose a prima facie case, then the defence should, in general, make that submission at the end of the prosecution case. If that submission succeeds, then the prosecution can apply to recall someone. That application may be granted or may be rejected, depending on the facts of the case, essentially on the question whether any prejudice to the defendant would be caused. But what seems to me quite indefensible is the submission by Mr Ley that the defence can, by reserving the submission until after the close of the defence case, put itself in a stronger position than it would have been had it made the submission earlier on. That seems to me to encourage a totally wrong approach to the administration of justice.

I refer also to paragraph 154 of Chapter 10 of the Report of the Criminal Courts Review (October 2001), which was cited with approval by the Court of Appeal in R v Gleeson [2003] EWCA Crim 3357 at paragraph 36:

… it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.

Miss Calder told us that the section 7(7) point had not occurred to her before her final speech. Given her great experience of this legislation, I find this difficult to accept, but it makes no difference to the result. The fact remains that the point was not taken when it should have been.

What are special circumstances justifying permitting the prosecution to re-open its case varies from time to time. As the above citations from Pydar Justices, Cook v DPP and Gleeson demonstrate, the principles of criminal procedure are not now what they were when Webb v Leadbetter was decided. Today, practitioners and the courts must take into account the overall objective of criminal procedure, as set out in Rule 1.1 of the Criminal Procedure Rules, which was referred to by the magistrates in the Case Stated:

(1)

The overriding objective of this new code is that criminal cases be dealt with justly.

(2)

Dealing with a criminal case justly includes—

(a)

acquitting the innocent and convicting the guilty; …

In my judgment, the matters to which I have referred in paragraph 32 above were special circumstances justifying the recall of Sergeant Webster, notwithstanding the fact that the justices had retired and had partially announced their decision. The only criticism that could be made of the prosecution is that they should have asked to recall Sergeant Webster as soon as Miss Calder took the section 7(7) point. But their failure immediately to appreciate the importance of the point is forgivable. Far more important is the question whether justice could be done. The appellant was available to be recalled to dispute the officer’s evidence, if it was disputed. In fact it was not. There was no injustice to her. In the circumstances of this case the magistrates were fully entitled to exercise their undoubted discretion as they did.

As the magistrates appreciated, the overriding objective applies as much to trials of motoring offences as to other criminal offences. There have been too many attempts before the courts to seek to avoid the conviction of those who have driven with excess alcohol by raising unmeritorious formal points. Those who drive with excess alcohol are a danger to the public and to themselves. Such points should not enable them to avoid conviction and punishment.

It follows that I respectfully disagree with the decision of Bean J in Traves. In my judgment it was wrongly decided. It is inconsistent with the decision of this Court in MacDonald v Skelt, which it is right to point out does not seem have been cited to Bean J.

I would answer the first question for the decision of the High Court in the Case Stated affirmatively.

As to the second question, I am frankly dismayed that any objection was made to counsel for the prosecution taking the officer to his document and what had been written or marked on it. The answer to that question is similarly affirmative.

I would dismiss this appeal.

I entirely agree. My Lord’s judgment is expressed in strong terms, but no more so than the circumstances of this case require. In the course of her submissions, Miss Calder said that this was not a case in which the defence had sought to ambush the prosecution. I disagree. Whilst it is true that, from the outset, the defence had taken the form of raising the issue of duress of circumstances or necessity, like my Lord I have difficulty in accepting that Miss Calder (as she maintains) only thought of the technical points which she came to advance whilst she was on her feet, making her final speech.

If the question is asked: What were the Webb v Leadbetter special circumstances in the present case? – the answer is clear. They resided in the fact that, in the present culture of criminal litigation, especially since the coming into force of the Criminal Procedure Rules, there are still some advocates who choose to defend a case in the way in which this case was conducted in the Magistrates’ Court. In my judgment, the justices did not fall into legal error. Indeed, they are to be commended for refusing to succumb to this kind of forensic legerdemain. Of course, a defendant is entitled to put the prosecution to strict proof. However, it is then for his advocate to raise the issues in a timely and appropriate way.

In fairness to the appellant, I add that no part of this Court’s displeasure is directed at her personally. In the course of cross-examination she candidly admitted that she had drunk a substantial amount of wine and would have been over the limit when she was stopped by the police. It seems that the magistrates accepted her account of the events which preceded her driving that night. However, it was undoubtedly correct of the magistrates to conclude that her real defence ceased to avail her when she drove again after the telephone call to the police. The same common sense that informed the decision to permit the recall of Sergeant Webster enabled them to be merciful when considering disqualification.

The questions posed by the case stated are answered as indicated by my Lord in paragraphs 40 and 41. This appeal is dismissed.