Tracy, R (on the application of) v Bangor Magistrates' Court

A defendant must receive a proper opportunity to give evidence in his defence before conviction. On judicial review, the court must assess whether that opportunity was established on the evidence, including the lower court’s reasons and statements from its clerk or members. Where those materials consistently show that the defendant understood the distinction between a submission of no case to answer and a closing speech, and knowingly declined to call evidence, the court may conclude that a fair opportunity was given. A conflict in recollection does not require the conviction to be quashed where the contemporaneous material and written reasons support the lower court’s account.

The claimant sought judicial review of his convictions by Bangor Magistrates’ Court for driving without due care, failing to stop after an accident and failing to report an accident. Permission was initially refused on the papers. On renewal, Collins J granted permission only on the issue whether the claimant had been given a clear opportunity to give evidence before conviction.

The claimant’s wife argued that an address made after the prosecution case was a submission of no case to answer, so that the claimant should subsequently have been invited to give evidence. The magistrates’ clerk and chairman stated that the address had been clarified as a closing speech and that the claimant had indicated that no defence evidence would be called. The central issue was whether the evidence established that a proper opportunity to give evidence had been provided.

1. The application was dismissed. The court found no ground to quash the convictions and no error of law or procedure warranting a case to be stated.
2. The right to give evidence in one’s defence requires a proper opportunity to be provided before conviction. The issue was whether, on the evidence before the court, that opportunity had been established.
3. The magistrates’ written reasons were material. They stated that the case had been decided on the merits after hearing all the evidence the parties wished to present. References to the absence of defence evidence were inconsistent with the suggestion that the magistrates had prematurely ruled on a submission of no case to answer.
4. The clerk’s statement explained that the distinction between a submission of no case to answer and a closing speech had been explained. The claimant’s wife then clarified that she was making a closing speech. The statement also recorded repeated indications that the claimant and his wife would not call evidence and that they understood that evidence could be called if they wished.
5. Although there was a conflict between that account and the claimant’s evidence, the court could not resolve it definitively by recollection alone. The consistency between the written statements, the magistrates’ reasons and the surrounding documents justified proceeding on the basis that a proper opportunity had been given.
6. The absence of a formal defence or appearance by the magistrates did not justify an adverse inference. In judicial review proceedings of this kind, it was normal for the lower court to provide evidence of what occurred without appearing as a party.

• High Court (Administrative Court): The application for judicial review was dismissed. The court also found no basis for ordering a case to be stated.
• Earlier permission decisions: A single judge refused permission on the papers. On renewal, Collins J granted permission limited to whether the claimant had been given a clear opportunity to give evidence.