Dunlop, R (on the application of) v Director of Public Prosecutions

When exercising the wide discretion to order a rehearing under Magistrates' Courts Act 1980, magistrates must act judicially and consider all relevant and material circumstances. Delay is relevant, but a bare reference to elapsed time is insufficient. The court must identify the concrete difficulties caused by the delay, such as lost papers or faded memories, and establish their existence. Where the defendant lacked knowledge of the conviction, the relevant period is ordinarily the period from acquiring knowledge to taking steps to seek a rehearing, rather than the period from conviction to application. A decision based on the wrong period or unsupported assumptions about missing papers is fatally flawed.

This was an appeal by way of case stated from the Caerphilly Magistrates' Court's refusal to rehear three road traffic convictions under section 142(2) of the Magistrates' Courts Act 1980. The convictions and sentence had been imposed in the appellant's absence. He maintained that he had not received the summonses and only learned of the convictions when he became aware of an arrest warrant.

The magistrates refused a rehearing principally because of the lapse of time and the risk that the prosecution papers had been destroyed. The central issues were whether that reasoning lawfully exercised the section 142 discretion and whether the relevant delay ran from conviction or from the appellant's first knowledge of it.

1. Appeal allowed. The magistrates' decision was quashed and the matter was remitted for rehearing before a differently constituted bench.
2. Section 142 confers a very wide discretion, but it must be exercised judicially. The magistrates had to consider the relevant and material circumstances and give reasons showing why a fair rehearing was no longer possible or appropriate. R v Ealing Magistrates' Court ex parte Sahota [1997] The Times, December 9th was applied in this respect.
3. It was insufficient to state simply that the time elapsed made reopening the case improper. The magistrates should have identified the particular problems caused by delay, such as the loss of records or fading memories. Although the prosecution file was at risk of destruction, the evidence did not establish when it had actually been destroyed or that it was unavailable when the application was made.
4. The magistrates considered the wrong period. The appellant asserted, and it was accepted for the appeal, that he first knew of the convictions on 25 March 2002. The relevant period was therefore the period between that date and the steps taken to seek a rehearing, rather than the approximately 13 months from conviction to application during which he had no knowledge of the proceedings.
5. The reasoning in the stated case was therefore wholly insufficient and unsatisfactory. It was a decision to which no reasonable bench properly directing itself under section 142 could come.

There was no order as to costs.

• High Court (Administrative Court): On appeal by way of case stated, the refusal of a rehearing was quashed and the matter was remitted to a differently constituted bench of magistrates.
• Caerphilly Magistrates' Court: On 10 July 2002, refused the application for a rehearing under section 142 of the Magistrates' Courts Act 1980.