Tracy, R (on the application of) v Bangor Magistrates' Court [2004] EWHC 172 (Admin)

Case No CO/2023/2003[2004] EWHC 172 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 21st January 2004
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF EDWARD TRACYClaimant-v-
Between
BANGOR MAGISTRATES' COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
THE CLAIMANT APPEARED IN PERSON (REPRESENTED BY HIS WIFE MRS TRACY) for in person for THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED
J U D G M E N TWednesday, 21st January 2004
[1]MR JUSTICE STANLEY BURNTON: This is an application by Mr Tracy for judicial review of the decision of the Bangor Magistrates' Court, made on 9th February 2002, to convict him of three motoring offences, namely, driving without due care, failing to stop after an accident and failing to report an accident.[2]The application for judicial review and in the alternative for a case to be stated by the Magistrates was the subject of an order made by the single judge on the papers. He refused permission to apply for judicial review. Mr Tracy then renewed his application for permission to Collins J. He ordered that permission be granted only on the point asserted by Mr Tracy that he had not been given a clear opportunity to give evidence before he was convicted by the Magistrates. The matter comes before me, therefore, only on that issue.[3]The case today has been argued by Mrs Tracy on his behalf, due, principally, as I understand it, to his difficulty in hearing and therefore responding to any questions that may be posed by the bench. Mrs Tracy is an articulate and clearly intelligent lady who has said everything possible on behalf of her husband. It is undoubtedly the case that if Mr Tracy was convicted without having had a fair opportunity to give evidence, then his conviction by the Magistrates should and must be set aside. The issue before me is whether, on the evidence before me, that has been established.[4]The starting point are the reasons put forward by the Justice which appear at page 35 of the bundle. Those were not formally signed, but, as I understand it, it is not disputed by Mr Tracy that those are indeed the written reasons which were provided by the Magistrates. It is quite clear from those reasons that the Magistrates considered that they were deciding the case on its merits, having heard all the evidence that the parties wished to put before them.[5]The real issue that arises in the present application is this: it is common ground that at the completion of the prosecution case Mrs Tracy made a speech to the Magistrates. Mrs Tracy says that that was only a case that her husband had no case to answer. If the Magistrates held that there was a case to answer then, in the normal course, he would then have an opportunity to give evidence on his own behalf and to call any evidence he wished to call. The decision of the Magistrates on such a submission would be whether or not there was a case to answer. It would not be "guilty" or "not guilty" of any of the charges.[6]When the matter came before Collins J he did not have the benefit of the statements which I have before me of the Magistrates' clerk and of the chairman of the bench. I shall refer to those in a moment.[7]For present purposes it is sufficient to reiterate that the reasons given by the Justices are clearly consistent with their belief that they had heard not a submission of no case to answer, but closing submissions. That is, submissions made after completion of all the evidence of the reasons why that evidence did not establish that Mr Tracy had committed any offence.[8]I note, in particular, the reference in two points in the reasons as to the absence of evidence from the defence. It would be astonishing if Magistrates should give reasons such as that in circumstances where the defence had been prevented from giving evidence by a premature ruling of no case. Moreover, the reasons given by the Magistrates on page 35 are not consistent with their having received a submission of no case to answer.[9]I turn, therefore, to consider the written statements put in on behalf of the court. Mrs Tracy has made a number of comments about that evidence. She first of all mentions that there has been no defence or acknowledgment of service or appearance by the Magistrates, or on their behalf, today. It is often not appreciated by members of the public that it is the convention, and almost invariable practice, for Magistrates not to be represented or to appear at a hearing of the present kind, on the basis that it might be embarrassing for those who exercise judicial functions to do so. In cases such as the present it is the normal practice for the lower court to put in evidence as to what occurred in the relevant proceedings and no more. I, therefore, draw no adverse interference from the fact that there has been no formal defence by the Magistrates or appearance by them.[10]Regrettably, what I do find is that there is a complete conflict of recollection and indeed evidence so far as the events before the Magistrates are concerned. The Magistrates' clerk, Manon Williams, says this in her written statement:
"My recollection, supported by notes made by me at the time, is however as follows. 7. Following the close of the prosecution case, Mrs Tracy, on behalf of the Claimant addressed the court. During the course of her remarks, Mrs Tracy stated that the case could not be proved beyond reasonable doubt. At this point I asked her to clarify whether she was making a submission of no case or a closing speech. The distinction between the two was explained to her, together with what constituted a submission of no case. It was further explained to her that the court needed to be clear what it was being asked to do as different tests had to be applied. 8. Following this explanation, Mrs Tracy informed the court that she was now making a closing speech. A note of the proceedings was kept by me and the relevant part reads as follows: 9. 'Reference made [by Mrs Tracy] to beyond reasonable doubt. Mrs T asked to clarify whether or not this is a submission or a defence closing speech. 'I make this now [a] closing speech. There is a case which has not been referred to. [A] def[endant] [can]not be forced to choose between making a submission of no case or a closing speech'. Clerk explained to Mrs Tracy she was not being asked to choose but to clarify which she was doing as the court had to apply different tests and standards of proof. Further explanation given about the balance of probabilities and prima facie case'. 10. I am satisfied that a full explanation was given to Mrs Tracy of the nature and requirements of a no case submission and a closing speech, and I am further satisfied that she understood the consequences of making a closing speech at that point in the proceedings. 11. The transcript of the October hearing shows that the claimant indicated to the Honourable Mr Justice Collins that he had wished to give evidence at his trial and would have given evidence. This is completely contrary to the clear indications given to the court, not only during the course of the trial, but also during preliminary hearings. Mr and Mrs Tracy made it abundantly clear that they would not be calling evidence. This instruction was repeated during the cross examination of the main prosecution witness when asked if they intended to call evidence of a matter which was being put to the witness. At no point during the proceedings did they ever indicate a contrary intention"
. That statement of Manon Williams is the subject of the chairman's statement of 12th November 2003 which confirms its contents.[11]Mrs Tracy has made a number of submissions in relation to those statements. First, she points out that there were three Magistrates and only the chairman has given a statement. So far as that is concerned, that again is quite normal. I draw no adverse interference from that fact. Secondly, she says that there is a contradiction, internally, in the statement of Manon Williams, in that at one point she refers to a submission of no case to answer being made, I refer to paragraph 5, and later she refers to a closing speech having been made. In my judgment, read properly, there is no such internal contradiction.[12]According to the statement of Manon Williams Mrs Tracy made what she initially said was a submission of no case, but which was clarified during the course of her address as being a closing speech. That is to say, a speech made after the completion of evidence. So far as the opportunity to give evidence is concerned, it is explicit in paragraph 11 of Manon Williams' statement that it was made clear by Mr and Mrs Tracy that they would not be calling evidence, and that they were aware that they would have an opportunity to do so if they wished to use it. I refer also to paragraph 10.[13]I am faced, therefore, with a contradiction between the written statements and what I am told by Mrs Tracy. Insofar as the written statements of the clerk and the Magistrate are criticised on the basis of self contradiction, or the absence of other statements, in my judgment, those criticisms are not well-founded.[14]Mrs Tracy relies on the fact that none of the points made by her during the course of her address are referred to in the reasons given by the Justices. That is not entirely right, because the nature of the case made by Mrs Tracy on behalf of her husband is pointed out. But, as I have already indicated, it seems to me that the reasons given by the Magistrates are entirely consistent with their having heard from Mrs Tracy a closing speech rather than a submission of no case to answer. I have the written statement of Manon Williams that Mrs Tracy was aware of what she was doing, the consequences of what she was doing, and that repeated indications had been given that there would be no defence evidence.[15]I cannot resolve the contradiction between what is said in the written statements and what is said by Mrs Tracy in any definitive way. Insofar as I am asked to order a case to be stated there is no point in doing so on the basis of the written statements I have, no error of law or of procedure was made by the Magistrates or their clerk on their behalf.[16]One comes down, therefore, to the question, whether, on the evidence before me, it has been established that Mr Tracy was not given a proper opportunity to give evidence as was his right in his defence. Given the consistency between the documents I have before me, given that these are the reasons given by the Magistrates, it seems to me I must deal with this matter on the basis of those written statements. Those written statements establish that a proper opportunity to give evidence was given.[17]In those circumstances there are no grounds to quash the decision of the Magistrates. In those circumstances I dismiss this application.[18]MRS TRACY: I cannot believe it, my Lord. I cannot believe it. You are willing to believe what a clerk says although it is contradictory and that I made no submissions and they are not referred to in --[19]MR JUSTICE STANLEY BURNTON: There we are. I heard your submissions and I have made my decision Mrs Tracy.[20]MRS TRACY: No, my Lord, this is ridiculous, it really is.