J U D G M E N T

Thursday, 13th November 2003

1. MR JUSTICE MAURICE KAY: This is an application for judicial review of a decision of the Selby Magistrates sitting at York on 24th March 2003. On that occasion the magistrates had been hearing the summary trial of the claimant, Barry Kendall. He stood charged with a number of offences alleged to have been committed as a result of the cessation of a relationship with a young woman. Of the offences there was one involving a telephone call to which he pleaded guilty. The five offences for which he stood trial were motoring offences, the essence of which was that he had deliberately ridden his motorcycle up and down the pavement "pulling wheelies" outside the home of the family of the young woman in question. This gave rise to charges including dangerous driving, driving whilst disqualified and driving without insurance.

2. The issue at the trial was one of identification. The claimant denied that it was he who had behaved in the manner described by the witnesses. Those witnesses were three members of the Harrison household, namely Mrs Harrison and her two daughters.

3. It is now necessary to describe the sequence of events which gave rise to the present difficulties. The claimant had first appeared in Selby Magistrates in connection with this matter on 8th July 2002. Having pleaded not guilty to the motoring offences, the cases were adjourned for a pre-trial review on 12th August 2002. At that pre-trial review the cases were listed for trial on 30th September with a time estimate of one day. The trial did not proceed on 30th September. There was an application to vacate on behalf of the defence. It was indicated that the claimant's defence would be one of alibi and that the trial could last up to two days. The next hearing was on 14th October 2002. That was in the form of a procedural hearing and a further trial date was fixed for 13th January 2003. The time estimate reverted to one day. Unfortunately, on 13th January, once again, the trial did not proceed. It seems that there was some failure of communication about the listing. On 28th January 2003 the trial was refixed for 14th March with the same one day time estimate.

4. At last, on 14th March, the case began, but by the end of the court day it had not reached a conclusion. It seems that one of the reasons for slow progress that day was that the prosecution and the defence had asked for time in the morning and the trial commenced rather later than the listing had assumed.

5. At the end of the hearing on 14th March the proceedings were adjourned part heard to 24th March 2003 on the basis that the court would sit at 9 o'clock so as to ensure completion that day. Unfortunately, on 24th March the chairman of the bench hearing the case had to attend a funeral, the result of which was that the court could not resume the hearing until midday.

6. The consequential effect was that, once again, the evidence was not completed that day. The magistrates were willing to continue with the hearing the following day, 25th March, but neither the prosecutor nor defence counsel was able to return on the following day. It so happened that the chairman was then due to be away for at least four weeks. Accordingly, in the event of a further adjournment of the trial part heard, it would be a number of weeks before the court could resume the hearing.

7. That led the prosecutor to invite the court to abandon the trial and refix a new date. That did not commend itself to counsel for the claimant. She took the view that a retrial before a different bench of magistrates would amount to an abuse of process. In particular, she expressed concern that the prosecution witnesses had had an opportunity for a rehearsal of their evidence and on any retrial would come prepared to remedy such deficiencies in that evidence as the hearing had exposed.

8. The legal adviser in court sought advice from the deputy clerk and some discussions took place in the presence of the parties as to the best way of proceeding. The advice given to the bench was that it would be proper to abandon the trial and to refix a new trial before a differently constituted bench. Having heard the rival submissions and listened to that advice, the magistrates proceeded to discontinue the trial and to adjourn it to a different bench for re-hearing.

9. They gave reasons which were reduced to a document which reads as follows:

"It is most unfortunate that this case did not proceed on the 14th March at 10 o'clock. This bench was available to start at that time but the start was delayed for 2 hours at the request of the defence and prosecution. Today's delay is for reasons known to you. It is unfortunate that whilst the court can accommodate the hearing continuing tomorrow this is not convenient to either the prosecution or defence. We have therefore decided that this trial should be heard afresh before a different bench. We do not believe that this is an abuse of process, more an unfortunate series of events. We have also considered whether the defendant will be disadvantaged because the three principal witnesses will be giving their evidence for a second time and have concluded that he would not be."

It is that decision which is sought to be challenged in these proceedings.

10. On behalf of the claimant, Mr Lodge submits that the decision was one which no reasonable bench of magistrates could have reached in the circumstances of the case. Indeed, there is no other way in which such a decision could be challenged.

11. It is undoubtedly the case that magistrates have the power of adjournment under section 10 of the Magistrates' Courts Act 1980, which embraces the possibility of adjournment for a retrial before a different bench. As Farquharson LJ said in the case of R v Ripon Liberty Justices ex parte Bugg [1990] 155 JP 213, that power is one which must be exercised "in the interests of justice and not for any frivolous or irrelevant reason". Mr Lodge concedes that there is no suggestion of a frivolous or irrelevant reason in the present case.

12. Essentially, his submission is that although alternatives were being canvassed before the bench, in reality there was only one appropriate decision that the magistrates could have reached, namely to adjourn the trial again part heard to a date four to six weeks thereafter and to continue the trial before the same bench of magistrates.

13. He emphasises the issues that were arising in the trial, in particular that the primary issue was one of identification by recognition. He refers to the risk that such witnesses may give their evidence more firmly, or may appear so to do, when giving their evidence a second time. He points to the importance of the demeanour of the witnesses in such circumstances. He refers to the fact that two of the three witnesses, the two daughters, conceded in the course of cross-examination that they had discussed the case before giving evidence. It is said, therefore, that there is a risk of that being repeated with the consequence that any discrepancies in their evidence might be removed before the retrial.

14. Although, before the magistrates, counsel then representing the claimant had expressed all this in terms of abuse of process, Mr Lodge rightly concedes that this is not a matter of abuse of process; it is a matter of a case management decision being taken within the ambit of a discretion as to which the bench were required to take into account all the relevant considerations, particularly their assessment of the interests of justice.

15. In my judgment, that is precisely what the magistrates did. It is apparent from the articulated reasons which I have set out that the magistrates specifically addressed the question of disadvantage to the claimant, but came to the conclusion that there would be no such disadvantage, or at least not significantly so.

16. It is a matter of fact that counsel then representing the claimant took a commendable note during the first proceedings - it is almost a model that could be distributed to advocacy students. Whilst it is no doubt not comprehensive - such a note never can be - it would assist the advocate representing the claimant on any retrial in identifying, firstly, inconsistencies and discrepancies that arose on the first trial and, secondly, any further inconsistencies or discrepancies which come to light in the retrial.

17. In ex parte Bugg Farquharson LJ said at page 222:

"The fact that a person may be prejudiced on the re-hearing before a different tribunal is, of course, unarguable, but does occur unfortunately from time to time. Every advocate is familiar with the situation where he has to conduct cross-examination in a re-trial, of witnesses who he has questioned on the same issues before; but it could hardly be said that because of that difficulty the justices' decision in the present case was perverse."

In my judgment, that resonates in the present case.

18. There are many circumstances in which the same witnesses in a criminal trial have to give evidence more than once. It happens most often when a jury has been discharged or the Court of Appeal has directed a fresh trial. Everyone is aware of the difficulties, but it is not something which is inherently unfair. Nor is it inevitably the defence which is disadvantaged by it.

19. Mr Lodge submits that the issue in the present case being one of identification by recognition is different from the kind of issue that arose in Bugg . In terms of a description of the two cases, that is entirely correct. However, whilst the issue is different, it is not such as to take this case into a category which necessitated a different outcome when the possibilities were being canvassed as to how to progress the matter.

20. In all the circumstances, I have come to the conclusion that the decision taken by the magistrates was a carefully considered decision. It was properly reasoned. Those reasons stand up to close scrutiny and it cannot be said that the magistrates acted irrationally in any way. In those circumstances, for my part, I would refuse this application.

21. MR JUSTICE MACKAY: I agree.

22. MR LODGE: My Lord, there is one further matter. The claimant had the benefit of a legal representation order. I would ask for legal aid taxation.

23. MR JUSTICE MAURICE KAY: Apparently the certificate in the court's possession covered the paperwork but not the hearing. If you are fully covered, and I very much hope for your sake you are, if it is lodged within seven days you will get the necessary order.

24. Could we thank you for the succinctness and directness of your submissions.