QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SEAN HAYES||(APPELLANT)|
|CHELMSFORD CROWN COURT||(RESPONDENT)|
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(Official Shorthand Writers to the Court)
MR R OVERBURY (instructed by Essex Crown Prosecution Service) appeared on behalf of the RESPONDENT
Wednesday, 22 January 2003
Crown Copyright ©
"Where an Appellant has been granted bail by the Magistrates' Court to the hearing of any appeal in the Crown Court and persistently fails to appear for the appeal hearing providing no evidence for the cause of the failure is it open to the Court to conclude that the Appellant is wilfully frustrating the course of the proceedings and that his repeated failures amount to a de facto abandonment of the appeal?"
"(1) A party to any proceedings before a magistrates' court may be represented by counsel or solicitor. (2) ... an absent party so represented shall be deemed not to be absent."
Section 79(3) of the Supreme Court Act 1981 provides:
"The customary practice and procedure with respect to appeals to the Crown Court, and in particular any practice as to the extent to which an appeal is by way of rehearing of the case, shall continue to be observed."
Rule 11(1) of the Crown Court Rules 1982 provides:
"Without prejudice to the power of the Crown Court to give leave for an appeal to be abandoned, an appellant may abandon an appeal by giving notice in writing ... not less than the third day before the day fixed for hearing the appeal."
" ... under section 79(3) of the Supreme Court Act 1981, reinforced by section 122 of the Magistrates' Courts Act 1980, as the applicant was represented by counsel he was deemed to be present in court; thus, the Crown Court were in error in refusing to hear his appeal. It followed that there was no effective abandonment by the applicant's counsel purporting to withdraw his appeal, and there was nothing to prevent his appeal being heard, for it would be wholly unjust if his fellow appellants' appeal had succeeded while he was left with a conviction against his name which ought not to have been recorded at all."
Secondly, in R v Crown Court at Guildford, ex parte Brewer  87 Cr App R it was held:
" ... that an appeal to the Crown Court was by way of re-hearing. The Court was therefore able to form a judgment on the facts as outlined by the prosecution in deciding whether the sentence was excessive or correct, even in the absence of the applicant. Thus, the Crown Court had not acted unlawfully or in breach of natural justice - B's counsel had been asked to apply for leave to abandon. Leave could have been granted if he had done so. He did not. The appeal, therefore, remained alive to be considered by the Crown Court."
The third authority to which I have been referred is Podmore v Director of Public Prosecutions, CO-3429-95, 2 July 1995 in which it was held:
"(1) if an appellant is represented by a legal representative he is deemed to be present; (2) any application to hear the appeal in his absence is thus unnecessary and merely a courtesy to the Court; (3) in the absence of any application to abandon the appeal the Crown Court should proceed to hear the evidence; (4) the Crown Court has no power to dismiss the appeal without hearing the evidence. It was quite clear that the Crown Court faced with a situation where an appellant does not appear in person but appears by counsel has no right to treat the situation as if the appellant was not before the court at all and cannot dismiss the appeal peremptorily without hearing evidence and adjudicating upon it."
Those three authorities are, of course, all Divisional Court authorities.
"Can you place any argument before us as to why we should not dismiss his appeal today for want of prosecution?"
It is not surprising that Miss Gardiner did not readily have to hand the several authorities cited before me today. She did point out that Mr Hayes had always maintained his innocence; that the evidence against him was quite sketchy; and there was no reason, so far as she knew, why Mr Hayes was not there. He was, however, adamant that he was not guilty and he wished to be represented on appeal. Nothing that Miss Gardiner said could possibly have been construed as either an application to abandon the appeal or, in any way, a concurrence in a proposal to dismiss the appeal without the hearing of any evidence.
Miss Gardiner submits that, by reason of section 79(3) of the Supreme Court Act 1981, reinforced by section 122 of the Magistrates' Courts Act 1980, an appellant represented by counsel on appeal against conviction is deemed to be present. Relying on the authority of ex parte Clair, she submits that any application made to hear the appeal in the absence of the appellant is unnecessary and merely a courtesy to the court. She submits that the Crown Court had no power to dismiss the appeal without the hearing of evidence and, accordingly, that the Crown Court acted in excess of its jurisdiction by treating the appellant's failure to attend as an abandonment of his appeal. Relying on the authority of ex parte Brewer, she submitted that, where an appellant fails to attend or give instructions, it is right for the Crown Court to proceed to hear the appeal in the absence of the appellant but in the presence of his counsel. She relied upon the fact that the appellant did not give notice in writing to the court to abandon the appeal, in accordance with rule 11 of the Crown Court Rules 1982. It would also have been open to her likewise to submit that, within the three days immediately preceding the appeal, he had not sought leave to abandon his appeal. Accordingly, it is submitted that the Crown Court acted in excess of its jurisdiction by treating the failure of the appellant to attend as an abandonment of his appeal.
"First of all [the point was taken] that there was an entitlement of the applicant not to be present if he did not want to be. He was entitled to be present if he did so want, but he was not in custody. He was not on bail. There was no recognisance which he had entered into in order to require his presence at the court at the hearing of the appeal and it was simply a question of whether he chose to come or not. One gets this in the Court of Appeal, Criminal Division, where an appellant is entitled to be present at his appeal against conviction, but there is no obligation upon him to be present if he is not in custody and chooses not to come and see what happens."