Lord Widgery CJ, with whom Ashworth and Griffiths JJ agreed, stated that, in determining a request by a defendant to withdraw consent to summary jurisdiction, the justices should exercise their jurisdiction ‘on how they see the broad justice of the whole situation.’ and
‘So the true position when the matter eventually came back to the justices was that they did have power to allow the applicant to withdraw his consent to summary trial, and if he asks, as he did, to withdraw his consent, then the justices were required to exercise their discretion whether they would allow him to do so or not. The mischief in the present case is that they did not exercise a discretion at all because they believed that they had no discretion to exercise.
I am satisfied they were wrong in adopting the view that they had no discretion to exercise, and I would order mandamus to go directing them to hear the applicant’s request to withdraw his consent to summary trial, and to determine that request in their discretion. We have been pressed by Mr. Smyth to give some kind of indication or guidelines as to how such a discretion should be exercised. For my part, I think it would be dangerous, and I decline to give any such direction. I think it suffices to tell the justices that, as in all their undertakings, they must endeavour to do justice, and whether or not they exercise their discretion in favour of the applicant’s request will depend on how they see the broad justice of the whole situation.’
In this case however, they refused themselves to exercise the discretion on behalf of the justices who failed to exercise it.
Lord Widgery CJ said: ‘So the true position when the matter eventually came back to the justices was that they did have power to allow the applicant to withdraw his consent to summary trial, and if he asks, as he did, to withdraw his consent, then the justices were required to exercise their discretion whether they would allow him to do so or not. The mischief in the present case is that they did not exercise a discretion at all because they believed that they had no discretion to exercise.
I am satisfied they were wrong in adopting the view that they had no discretion to exercise, and I would order mandamus to go directing them to hear the applicant’s request to withdraw his consent to summary trial, and to determine that request in their discretion. We have been pressed by Mr. Smyth to give some kind of indication or guidelines as to how such a discretion should be exercised. For my part, I think it would be dangerous, and I decline to give any such direction. I think it suffices to tell the justices that, as in all their undertakings, they must endeavour to do justice, and whether or not they exercise their discretion in favour of the applicant’s request will depend on how they see the broad justice of the whole situation.’
Judges:
Lord Widgery CJ, Ashworth and Griffiths JJ
Citations:
[1972] 1 WLR 277
Jurisdiction:
England and Wales
Citing:
Applied – Regina v Craske, ex parte Commissioner of the Police for the Metropolis QBD 1957
The court has discretion to permit a defendant a change of election for trial. Devlin J said: ‘I do not think that means that once the procedure is set in motion, the court has ineluctably to allow the wheels to revolve without any power to stop . .
Cited by:
Cited – Aryan v Department of Public Prosecutions Admn 13-Jan-2004
The defendant appealed against a refusal by the magistrates to allow him to re-open his mode of trial hearing so as to allow him to elect trial at the Crown Court. She was Iranian and non-English speaker, though with a translator. The magistrates . .
Lists of cited by and citing cases may be incomplete.
Magistrates
Updated: 15 May 2022; Ref: scu.425326