Late Evidence Accepted in Breath-Test Case

A prosecution for drink-driving, which was ‘ambushed’ when the defence raised a new issue in its closing speech, made headlines recently when the Court upheld the right of the prosecution to introduce evidence to meet the point after it had closed its case.

Norinder Malcolm was charged with drink-driving and her case was heard in Barnet Magistrates Court. Ms Malcolm had been arrested in unfortunate circumstances. She had gone to her mother’s home and found her mother’s boyfriend (Mr Killen) there. He had kicked and punched her and, although she had drunk alcohol, she was frightened and drove away. She did not go home because her mother’s boyfriend knew her address and she was scared he would pursue her. She called the police from a telephone kiosk to report him, hoping that he would be arrested. Although she was told by the police to wait where she was, she drove to another place and contacted them again.

When the police attended her, they noticed that she smelled of alcohol and breathalysed her.

In Court, she acknowledged that she had been drinking. Her defence was based on the doctrine of duress. She claimed she had been attacked and was fearful of further attack. The police sergeant who administered her blood alcohol test at the police station did not give evidence.

In her final speech, the lawyer representing Ms Malcolm submitted that the required warning that a failure to provide a specimen might render her liable to prosecution had not been given.

The magistrates were mindful to acquit Ms Malcolm because of the claimed procedural irregularity. However, the prosecutor requested that the police sergeant be called to give evidence. The magistrates agreed to hear his evidence in which he confirmed that the warning had been given and the correct procedure had been followed to the letter.

Ms Malcolm appealed against her resulting conviction, arguing that the prosecution had closed its case and the evidence of the police sergeant should not have been heard. Normally, once the prosecution has closed its case and the magistrates have retired to consider their verdict, further evidence will not be heard. However, there is precedent for evidence to be admitted at that late stage in certain circumstances.

Interestingly, the magistrates indicated that they were of the opinion that whilst the defence of duress was available to Ms Malcolm 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.”

Regrettably for Ms Malcolm, the High Court was unimpressed with her barrister’s arguments. Mr Justice Burnton stated that, “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.” Lord Justice Maurice Kay, also sitting to hear the appeal, went so far as to disagree with the claim that “this was not a case in which the defence had sought to ambush the prosecution.”