Narinder Malcolm v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Stanley Burnton J,Lord Justice Maurice Kay |
| Judgment Date | 27 February 2007 |
| Neutral Citation | [2007] EWHC 363 (QB) |
| Docket Number | Case No: CO/10295/2005 |
| Court | Queen's Bench Division |
| Date | 27 February 2007 |
[2007] EWHC 363 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
and
Mr Justice Stanley Burnton
Case No: CO/10295/2005
Renée Calder (instructed by Vickers & Co) for the Appellant
Benjamin Aina (instructed by the CPS) for the Respondent
Hearing date: 30 January 2007
Introduction
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.
The facts
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 submissions of the parties
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.
The Authorities
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...
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Table of Cases
...CO/1084/97, DC! 344 .................................................... Mahoney v DPP, unreported, CO 2344/96, DC! 119 Malcolm v DPP [2007] EWHC 363 (QB), [2007] 1 WLR 1230, ..................................................... ! [2007] 2 Cr App R 1, [2007] RTR 27, DC! 590 ........... Mars......
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Other Issues
...… was that of the Appellant.” The answers to all three questions were yes; appeal dismissed. CHAPTER 12: OTHER ISSUES Malcolm v DPP [2007] EWHC 363 (QB), [2007] 1 WLR 1230, [2007] 2 Cr App R 1, [2007] RTR 27, 27 February 2007, QBD (DC) On the facts of this case (defence raising, in its clos......