CO/6697/2003 
Neutral Citation Number: [2004] EWHC 728 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 24th March 2004

B E F O R E:

LORD JUSTICE KENNEDY 

MR JUSTICE MACKAY 
 
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TUCK
(APPELLANT)

-v- 

VEHICLE INSPECTORATE
(RESPONDENT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
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MR N HOFFMAN (instructed by Rowe Sparres) appeared on behalf of the APPELLANT
MR T DEAL (instructed by Daltons, Horsham) appeared on behalf of the RESPONDENT
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J U D G M E N T 
Wednesday, 24th March 2004
1.	MR JUSTICE MACKAY:  This is an appeal by way of case stated from a decision of the justices sitting at the Sussex Northern Magistrates' Court made on 16th December 2003.  They convicted the appellant of exceeding the gross permitted weight on a goods vehicle, contrary to Regulation 80(1)(b) of the Road Vehicles (Construction and Use) Regulations 1986 and section 41B of the Road Traffic Act 1988 with Schedule 2 of the Road Traffic Offenders Act 1988.
2.	The case was lodged some eight days beyond the ten day time limit allowed.  This was due to a letter from the appellant to his solicitors concerning his representation going astray.  We grant the necessary extension of time.
3.	The facts as proved and found by the magistrates at the close of the prosecution case were these.  On 7th November 2002 on the A23 in Sussex vehicle road checks were being carried out.  One of the vehicles seen and checked was a Ford lorry driven by the appellant.  This vehicle was weighed on a dynamic weighbridge by Mr Paul Chapman, a vehicle inspector.  The weight of the first axle was found to be 3,280 kilos - an overload, as he stated, of 13.1 per cent.  The authorised weight of the vehicle was 7,500 kilos and the permitted weight for the first axle was 2,900.  A copy of the till receipt displaying the weight was given to the appellant, with a copy of the weight certificate.  He was cautioned before being interviewed at the site, but did not sign the record of interview and left the site after redistributing the weight evenly across his vehicle.
4.	On those facts the appellant made a submission of no case to answer.  He argued that the prosecution had failed to prove, firstly, that a plating certificate had been issued in respect of this particular vehicle and, secondly, that the weight transmitted through the front axle exceeded the weight permitted in column 2 of that certificate.  In the result the magistrates allowed a prosecution application to recall Mr Chapman, their principal witness, who had examined this lorry by the roadside.  He was duly recalled and the appellant himself gave evidence and then the following further facts were found: firstly, that Mr Chapman had determined the permitted maximum weight of the first axle from the ministry plate on the vehicle; that he was unable to remember where the plating certificate was on this particular vehicle but stated that he knew it was in the form of a ministry plate; and that he had made a witness statement on 14th February 2003 and conceded that there was no mention of the plating certificate in that statement or in his contemporaneous notes.
5.	The magistrates were of opinion therefore, in response to the submission of no case to answer, that Mr Chapman could be recalled and that thereafter there was a case to answer.  They found that the weight of the first axle did exceed the permitted weight.
6.	The reason for their decision to allow the prosecution's application to recall Mr Chapman was that they thought they had a discretion, which they believed they had properly exercised, that the conflicting interests of the appellant and the public were weighed up and it was decided that the overall interests of justice were best served by allowing the prosecution to re-open their case.
7.	They went on to describe the reasons for their decisions in the rest of the case after the evidence was concluded in this way: they thought the prosecution had adduced sufficient evidence to support their case and for a tribunal properly directed to convict; Mr Chapman's evidence, though inconsistent in parts, was generally credible; and Mr Tuck's evidence was insufficient to discharge the presumption that the weighbridge was calibrated and accurate.
8.	The magistrates posed three questions for the opinion of this court in these terms:  
 (1) Should the magistrates, having heard a no case to answer submission, have acceded to the prosecution application to reopen their case given that no evidence had been put before them of a plating certificate?  
 (2) Were the magistrates correct in placing weight on the evidence of Mr Chapman when he was recalled after the case was reopened bearing in mind: (a) there was a 10 month gap between the incident and the trial, (b) he had made no mention of a plating certificate or corresponding number in his contemporaneous note or later statement and (c) his evidence could have been contaminated by his continued presence in court listening to the legal arguments prior to giving further evidence or an addendum statement?
 (3) If the answer to questions 1) and 2) above are in the affirmative, at the conclusion of the case could the magistrates be satisfied to the criminal standard of proof of the existence of, and contents of, the plating certificate and therefore find that the defendant's vehicle was loaded in such a way as to exceed the prescribed limit for that vehicle?"
The relevant legislation 
9.	The Road Traffic Act section 41B states as follows:
"(1) A person who - 
 (a) contravenes or fails to comply with a construction and use requirement as to any description of weight applicable to - 
 (i) a goods vehicle ...
is guilty of an offence."
The Road Vehicles (Construction and Use) Regulations 1986 regulation 80(1) reads, so far as relevant:
"Subject to paragraphs (2), (2A), (2B), (2C) and (4), no person shall use, or cause or permit to be used, on a road a vehicle - ...
 (b) for which a plating certificate has been issued, if any of the weights shown in column (2) of the plating certificate is exceeded."
10.	Turning then to the first question posed by the magistrates, there was undoubtedly a clear lacuna in the prosecution case when it was closed for the first time.  The prosecution did not seek to mend it by suggesting that the magistrates could infer the existence of, and the terms of, a plating certificate from the evidence that Mr Chapman had already given, which evidence I remind myself included the assertion that the permitted weight for the first axle was 2,900 kilograms.  
11.	There is, it is accepted rightly by Mr Hoffman, a clearly established discretion which would allow the prosecution to re-open their case in appropriate circumstances.  The issue that has arisen is the extent of that discretion and whether it was correctly exercised by the magistrates in this case.  
12.	The appellant submits that the prosecution had failed to prove what they must have known from the outset was an essential part of their case, and that was clear from the evidence they had served in advance of the hearing, or, if it was not, at the hearing itself.  
13.	While the appellant concedes the discretion to allow the prosecution to re-open extends beyond circumstances in which a matter has arisen suddenly or ex improviso, or an omission to prove something which could be called a mere technicality or formality, nevertheless that discretion should be exercised sparingly, particularly in circumstances where, as here, the omission relates to a central feature of the case.  
14.	The respondent submits that it was just and reasonable to allow them to re-open the case, the discretion was exercised fairly, and balancing the conflicting interests of the appellant on the one hand and the public interest in the other and concluding that the overall interests of justice were best served by allowing the case to be re-opened.  No prejudice, they say, was caused to the appellant.  The evidence was purely formal and he had as good an opportunity to cross-examine on it when it was called as if that evidence had been given in its correct sequence.  The only discernible prejudice is, they say, the loss of an opportunity to escape conviction through a prosecution oversight.
The authorities 
15.	This issue has been addressed on many past occasions by courts, and I do not propose to rehearse those decisions in this judgment.  That exercise was in fact carried out very fully by my Lord, Kennedy LJ, in the case of Jolly (which I will refer to below).  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 31st March 2000, unreported).  
(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).
16.	Returning to the present case, the first question posed is in a sense difficult to isolate entirely from the second.  The evidence which the prosecution were in the event allowed to call, by re-opening their case, was no mere formality, such as the production of a certificate that a computer was in working order or that a device was properly calibrated; it did require, as Mr Hoffman stresses in his argument, oral evidence to be given by Mr Chapman about events ten months before as to which he had no contemporary note and as to which his witness statement was silent.  In response to it, it is fair to say the defendant, had he been minded to do so, could only have sought to prove a negative.
17.	Mr Hoffman seeks to argue that at this stage, that is to say the stage of exercising their discretion, the magistrates should have performed some evaluation of the evidence that it was intended to adduce so as to see whether it was in fact likely to be capable of filling the gap which had been identified.  I found this argument impossible to accept.  The time for such evaluation can only be after the evidence is heard.  The decision to re-open surely cannot include as a relevant factor the likely strength or weight of the evidence that it is being sought to adduce.
Conclusions on the first question 
18.	I would begin, and I would really end, by asking the question: what prejudice did the appellant suffer as a result of the re-opening of the case against him?  All I can see in response to this question is the loss of a bonus victory due to a prosecution oversight.  
19.	The positive defence that had been deployed up to the close of the prosecution case, we are told, was simply to challenge the accuracy or reliability of the reading of 3,280 kilograms.  In all other respects the defence posture was a perfectly legitimate one, but amounted to saying no more than "you prove it".  The only cross-examination of Mr Chapman on the point that concerns this appeal was a request to see his notebook.  When counsel saw it, it became clear that it was silent as to the certificate either being present or its number or its terms, and having established that counsel asked no more questions.  But it must surely have been apparent to the defendant's advisers from the start of the case that Mr Chapman had some source of information on which he based his assertion that the specified maximum for this axle was 2,900 kilograms.  He could not otherwise have described the measured load as being an overload.  He was not cross-examined as to the basis of this evidence, whether it was based on guess work, supposition or hearsay as opposed to direct observation.  One can understand perhaps why not.  It was no doubt for good reason that Mr Hoffman refrained from extending his cross-examination into such areas as whether there was a plate at all, what it said, where it was and why he had not made a note about it in his book.  But the form of prejudice that is identified in this case must surely be present in every case where the prosecution is allowed to fill a gap in its case.  It amounts to no more than a loss of a windfall success.  
20.	The appellant in this case cannot argue that he shaped or adjusted his defence to meet one type of case, only then to face a different one.  Other examples of prejudice given in argument by Mr Hoffman I found not convincing.  He made no request to adjourn in the light of the magistrates' decision, to call other evidence to meet this new evidence; indeed, it is difficult to see how he could sensibly have done so.
21.	As to the second question, the weight to be given to Mr Chapman's evidence, the issues thrown up by the question as drawn are predominantly issues relating to matters of fact and as such ill-suited to an appeal of this nature.  The only exception is the third sub-issue: whether his evidence, when given, was tainted by his having sat in court to hear the submission, and thus having had the benefit of a clear identification of the evidence that he needed to give to fill in the gap in the case.  Would it have been better if he had sat outside the court, whereupon an additional witness statement could have been taken from him in circumstances in which the taker could have scrupulously avoided leading him to the evidence which was needed to answer the submission?  It is to be noted that the defence made no application (as is often, though not always, made) to the effect that the witness should sit outside court while the application proceeded.
22.	My conclusion is that this feature of the case was not a valid reason for declining to allow the case to be re-opened.  The justices then had to decide, for the usual reasons and for this reason as well, what weight they should properly attach to the evidence of Mr Chapman once he was recalled.  The conclusion that they reached and which they have explained, cannot, despite Mr Hoffman's arguments to the contrary, be categorised as one they were not entitled to reach.  They do not say in terms that they made express allowance for the fact that Mr Chapman had heard the submission, but they did note that, though inconsistent in parts, his evidence was generally credible.  
23.	I have no doubt that the matters in question 2(a) to (c) were fully argued before them as being reasons why the prosecution case should be dismissed as not meeting the relevant standard of proofs.  That having been done, it was entirely open to them to decide what weight to place on the evidence, and according to that weight to find the case proved.  That, in my submission, deals with both the second and third questions.
24.	For my part, therefore, I would answer all three questions in the affirmative and would dismiss this appeal.
25.	LORD JUSTICE KENNEDY:  I agree.
26.	MR DEAL:  My Lords, the respondent seeks their costs in this matter.  A summary statement of costs has been served.
27.	LORD JUSTICE KENNEDY:  Yes.
28.	MR DEAL:  I do not know if your Lordships have a copy.
29.	LORD JUSTICE KENNEDY:  Yes, we had that yesterday.
30.	What do you want to say about it, Mr Hoffman?
31.	MR HOFFMAN:  My Lords, Mr Tuck is certified under the Legal Services Commission.  He is in effect legally aided.
32.	LORD JUSTICE KENNEDY:  So it has to be a detailed assessment in any event.
33.	MR HOFFMAN:  My Lord, yes.
34.	LORD JUSTICE KENNEDY:  Very well, the matter will go for detailed assessment.
35.	MR DEAL:  Thank you very much.
36.	LORD JUSTICE KENNEDY:  Thank you both very much.