England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Thursday, 9 December 2004

1. MR JUSTICE FIELD: This is a renewed application for permission for judicial review of a decision of the Crown Court at Ipswich made on 10th May 2004, refusing to adjourn an appeal brought by the applicant against his conviction on 3rd October 2003 in Sudbury Magistrates' Court of an offence under section 2 of the Protection from Harassment Act 1997. Having refused to adjourn the appeal, the appeal was heard in the applicant's absence and the court, HHJ Holt sitting with two justices, upheld the conviction.
2. The alleged harassment is related to a boundary dispute between the applicant and his neighbours, Dr and Mrs Kelly. The claimant's first appearance in the Magistrates' Court was on 18th July 2002. There were then numerous hearings of a procedural nature, several of which were caused by the applicant's announced intention to call a very large number of witnesses. On 12th March 2003 it was estimated that the trial would last eight days. In the event, the trial began on 29th September 2003 and lasted four days, with the District Judge's decision being given on the fifth day.
3. On 15th October 2003 the applicant filed a notice of appeal against his conviction. By now he had dispensed with the services of the solicitors who had acted for him in the Magistrates' Court -- Bindman & Co -- and instructed Belmores, a firm located in Norwich. At the hearing on 28th November 2003 the appeal was fixed to be heard on 9th February 2004 with an estimate of some five days. On 5th February 2004, however, the applicant made an application through counsel for the hearing to be vacated. At that hearing the court, HHJ Devaux, was told that the applicant was in New Zealand and was not medically fit to travel by air. The court was shown a letter from a medical practitioner, dated 28th January, the relevant part of which read:

"The above patient was seen and examined by me on 28 Jan 2004 and in my opinion will be medically unfit for air travel from 28 Jan 2004 for two weeks."

4. The learned judge directed that the matter come back on 19th February 2004 for a date to be fixed. On 19th February HHJ Thompson fixed the appeal for 10th May 2004. On 5th May the applicant applied through counsel to have the 10th May date vacated. There was produced to the court a letter dated 28th April 2004 to Messrs Belmores from a Dr Andrew Dickie in practice in New Zealand. The letter said that the applicant was suffering from a recurrence of low back pain radiating to his right leg. The letter also said that the applicant was suffering an onset of generalised joint pain and stiffness. It was the doctor's opinion that the applicant should not take a long-haul flight and, if it were possible, the hearing should be postponed for a further four weeks.
5. HHJ Devaux declined to vacate the hearing and directed that an application for an adjournment could be made on the day set for the hearing. The following day the applicant dispensed with the services of Messrs Belmores, stating that he no longer had confidence in their ability to represent him.
6. At the hearing on 10th May the applicant was unrepresented. He was still in New Zealand and he had not instructed new solicitors or counsel. There was in attendance a Mr Don Flett, who is an architect and not legally trained. He was available only to explain the reasons for the applicant's absence. It was clear that the applicant wished the hearing to be adjourned. A further medical report was produced, dated 5th May, that had been faxed from New Zealand. It was by a rheumatologist physician who stated that the applicant suffered from chronic right-sided low back pain and leg pain. He was unfit to travel for the next six weeks, during which he would be working with a physiotherapist.
7. Counsel for the Crown resisted the application for an adjournment, contending that the applicant had taken no proactive steps to conduct the litigation, save sporadically to dismiss those who represented him. It was submitted that the applicant's conduct was effectively a continuation of the harassment of Dr and Mrs Kelly, who had had this matter hanging over their heads for the best part of two years.
8. The court, through HHJ Holt, gave reasons for refusing the adjournment application. The judge set out the history of the litigation and noted that the court had been told by counsel for the Crown that counsel for the applicant had confirmed at the last hearing that Messrs Belmores had given no instructions as to the appeal since they had been formally instructed and signed the notice of appeal. The judge also recited the grounds of resistance to the application. The final paragraph of his reasons reads:

"What impresses us is that the notice of appeal was filed with the court on 15th October and since then Mr Reynolds has done nothing to prosecute this appeal. He has not given proper instructions to his solicitors and then last week he sacked his solicitors and although we also have to bear in mind medical evidence relating to his ability to travel we are satisfied that he has no proper intention to prosecute this appeal and in those circumstances, bearing in mind also that justice has to be done to both sides in any case, we reject what we deem to be his application to adjourn yet again and we expect this appeal to proceed and we shall hear what evidence there is to be called by the respondent."

9. Relying on R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110, Mr Fleming QC for the applicant submits that the decisions of HHJ Devaux on 5th May and the Crown Court on 10th May are open to challenge on the ground that they deprive the applicant of a fair opportunity to present his case because of his own unavoidable absence, and because it was or ought to have been plain that a refusal to grant an adjournment would cause substantial unfairness to one of the parties.
10. Mr Fleming also submits that the decisions were wrong in principle, having regard to what was said by this court in R v Birmingham City Magistrates' Court ex p Booth [1999] EWHC Admin 425.
11. In deciding whether to grant an adjournment, the Crown Court presided over by HHJ Holt were entitled to have regard to the interests not only of the applicant but also of the witnesses and the public generally: see the remarks of Judge LJ in paragraphs 35 and 36 of his judgment in R v Chaaban [2003] EWCA Crim 1012. It is perhaps worth noting that this approach is encapsulated in the draft overriding objective of the Criminal Procedure Rules published in [2004] Crim Law Rev 397-400.
12. However, I am of the view that it is arguable that there was an insufficient basis for the court to find that the applicant had no proper intention to prosecute his appeal. It is also arguable, in light of the authorities cited by Mr Fleming, that the court's approach to the medical reports, particularly that of 5th May, was flawed and that insufficient weight was given to the prejudice to the applicant if he were not present during the appeal.
13. Accordingly, I am of the opinion that the permission sought for judicial review of the refusal to adjourn should be given, and I would so order.
14. LORD JUSTICE TUCKEY: I agree.
15. MR FLEMING: My Lord, all I ask of you then is to grant permission to apply for judicial review with costs in the application.
16. LORD JUSTICE TUCKEY: If you are not able to agree on the outcome, we will direct that this should be heard as soon as possible with an estimate of half a day.
17. MR FLEMING: It is not a long point.
18. LORD JUSTICE TUCKEY: Half a day. Thank you.
(The short adjournment).
19. LORD JUSTICE TUCKEY: You have agreed it. We will make the order that you have agreed which is that the decision of HHJ Holt on 10th May is quashed. The question is remitted to the Ipswich, date to be notified to the parties and that the claimant should have his costs of the appeal, to be assessed if not agreed. Thank you very much.