Criminal

Evidence - prosecution allowed to adduce evidence after close of defence case - discretion to allow late adduction of evidence to be exercised sparinglyJolley v Director of Public Prosecutions: DC (Kennedy LJ and Butterfield J): 31 March 2000

At the defendant's trial for driving with excess alcohol, the prosecution omitted to adduce evidence to prove that the computer which had calculated the level of alcohol in the defendant's blood had been working correctly at all times, as required by s69(1) of the Police and Criminal Evidence Act 1984.When the defendant's solicitor pointed that out at the close of the defence case, the magistrate allowed the prosecution to adduce evidence to rectify the omission, and the defendant was convicted.

The defendant appealed against conviction by way of case stated.Nigel Ley (instructed by Byrne Frodsham & Co, Widnes) for the defendant.

Andrew Clarke (instructed by the Crown Prosecution Service, Warrington) for the prosecutor.Held, dismissing the appeal, that any trial court must recognise that it was the duty of the prosecution to call its evidence before closing its case; that it was now beyond argument that there was a general discretion to permit the calling of evidence at a later stage, which extended in a magistrates' court up to the time when the bench retired; that before exercising that discretion the court would look carefully at the interests of justice overall, and in particular the risk of any prejudice whatsoever to the defendant; that the discretion would be sparingly exercised, but it was doubtful whether it assisted any longer to speak in terms of 'exceptional circumstances'; that each case had to be considered on its own facts, and in the circumstances the magistrate had been entitled to admit the evidence.