Kendall, R (on the application of) v Selby Magistrates' Court

Magistrates may adjourn a part-heard criminal trial for a fresh hearing before a differently constituted bench where that course is required by the interests of justice. The decision is a case-management exercise within the magistrates’ discretion. The court must consider all relevant circumstances, including any disadvantage caused by witnesses giving evidence again. Repeated testimony is not inherently unfair, and the possibility that witnesses may appear more firmly on a retrial does not by itself make a fresh hearing irrational. Judicial review will not succeed where the magistrates have addressed the relevant prejudice, given proper reasons and reached a conclusion within the range of reasonable decisions.

The claimant sought judicial review of the Selby Magistrates’ decision on 24 March 2003 to discontinue his part-heard trial and order a fresh trial before a differently constituted bench. He faced five motoring charges arising from alleged motorcycle riding on a pavement. The principal issue was identification by recognition.

The trial had been adjourned part heard because the chairman was unavailable and neither advocate could continue the following day. The claimant argued that a retrial would be unfair because the principal witnesses had already given evidence and might improve or reinforce their accounts. The central issue was whether the magistrates’ case-management decision was irrational.

1. The application was refused. The magistrates had power under Magistrates' Courts Act 1980, section 10, to adjourn the proceedings for a retrial before a differently constituted bench.
2. That power had to be exercised in the interests of justice and not for a frivolous or irrelevant reason. The decision was a case-management decision within the magistrates’ discretion. The court was therefore required to consider whether the relevant circumstances had been taken into account and whether the conclusion was irrational.
3. The magistrates’ reasons showed that they had considered the possible disadvantage to the claimant from the three principal witnesses giving evidence again. Their conclusion that he would not be disadvantaged, or would not be significantly disadvantaged, was open to them.
4. The fact that witnesses may give evidence more firmly on a retrial, or may appear to do so, does not make a fresh hearing inherently unfair. Such difficulties commonly arise when a jury is discharged or a fresh trial is ordered. They do not inevitably disadvantage the defence.
5. The identification issue did not make this case materially different from R v Ripon Liberty Justices ex parte Bugg [1990] 155 JP 213. The magistrates’ decision was carefully considered, properly reasoned and capable of withstanding close scrutiny. It was not irrational.

The judgment was a judicial review of the Selby Magistrates’ decision made on 24 March 2003. The High Court refused the application and left the decision to rehear the case before a differently constituted bench undisturbed.