The prosecutor on a charge of driving with excess alcohol had failed to adduce evidence as to the calibration of the intoximeter. The magistrates allowed him to re-open his case. The defendant appealed.
Held: The appeal was dismissed: ‘If the failure to adduce that evidence on the part of the prosecution is simply an oversight and by that I emphasise an oversight in that the prosecution has not adduced evidence of that which they are in a position to call that day, either by producing the document or calling the witnesses, in my judgment particular considerations do apply. It would not, in my judgment, be consonant with the proper and due administration of justice in this particular field of criminal prosecution for there to be acquittals simply by reason of oversight in the sense that I have described. Justice will not be done if defendants are acquitted purely because of an oversight which was capable of being corrected there and then. The argument takes the canons of procedure to unjustified limits. It must always be a matter for the magistrates to consider anxiously. In any particular case, they will have to consider whether or not to exercise their discretion so as to permit the prosecution to fill the gap in their case.’
 EWHC Admin 737
Cited – Webb v Leadbetter QBD 1966
One of two witnesses whom the prosecution desired to call at the hearing of an information had not arrived. The available witness was called. The prosecution case closed. The defendant gave evidence and his case closed. The justices had retired to . .
Cited – Phelan v Back 1972
Cited – Regina v Pydar Justices Ex Parte Foster QBD 23-May-1995
There was a case to answer on an OPL charge despite the computer readout not being handed to Justices. It was in evidence. Evidence referred to but not challenged by the defendant can be relied upon by Justices in making their decision. The court . .
Cited – Christopher James Jolly v Director of Public Prosections Admn 31-Mar-2000
At trial in the magistrates court, the prosecution had failed to bring evidence that the computer used to analyse the defendant’s breath alcohol was in proper working condition. The defendant submitted no case to answer, and the magistrates allowed . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 May 2022; Ref: scu.140001