CO/2994/2005 
Neutral Citation Number: [2005] EWHC 2842 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 9th November 2005
 
B E F O R E:

MR JUSTICE COLLINS
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF DAVID PRICE
(CLAIMANT)

-v- 

SOUTHERN DERBYSHIRE MAGISTRATES' COURT
(DEFENDANT) 
&
THE CROWN PROSECUTION SERVICE
(INTERESTED PARTY) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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 - - - - - - -
MR IAN WISE (instructed by Doughty Street Chambers, 10-11 Doughty Street,London WC1N 2PL) appeared on behalf of the CLAIMANT
MR DAVID RICHARDS (instructed by the Crown Prosecution Service) appeared on behalf of the INTERESTED PARTY
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J U D G M E N T
1.	MR JUSTICE COLLINS:  This claim comes before the court as an application for permission but with a direction that, if permission be granted, the substantive hearing should follow immediately.  I propose to grant permission, as I indicated to counsel in the course of the argument, and to treat this as the hearing of the claim.
2.	The claimant seeks to quash a decision of the South Derbyshire Magistrates' Court whereby it refused an adjournment of a prosecution against him and proceeded to hear the case in his absence and to convict him.  He complains that that was a failure to act fairly in relation to him and he should have the opportunity of contesting the matter in the proper way and there should be a rehearing.  As the history, to which I will refer in a moment, indicates, an application was made on his behalf under Section 142 of the Magistrates' Courts Act to seek to persuade the District Judge to set aside his decision but that application failed.  So the claimant went through the proper alternative route before coming to this court.
3.	The history is somewhat lengthy.  The case against the claimant involves an allegation that he had assaulted a boy, who I think was aged, at the time, 11.  This stemmed, it would seem, from a long-standing dispute between him and neighbours and it is clear, from the manner in which he has conducted himself in connection with this litigation, that he is a difficult person to deal with.  In any event, the matter in question arose a long time ago on 1st February 2004.  The police were involved and, in due course, a summons was issued against the claimant on 14th July 2004.  Prior to that, he had been in correspondence with the Derbyshire Constabulary, seeking to dissuade them from issuing a summons and he had, at some stage, taken out proceedings in the County Court, alleging that there had been wrongful action of one sort or another by the Derbyshire Police against him.  It is not necessary to go into the details of that allegation but merely to indicate that he had taken those proceedings.
4.	The claimant, once he was told that the summons had been issued, indicated that he would seek to claim that it amounted to an abuse of process and in due course he made an application to this court, seeking to quash the decision to prosecute.  That quite rightly failed.  It had been pointed out to him that his remedy was to seek to persuade the Magistrates' Court that the matter should not proceed because it was an abuse of process.  He attended court and made that application.  It was rejected and, on 19th October, following that rejection, he pleaded not guilty and the trial was fixed to take place over three days on 24th January 2005.  The District Judge, Judge Zara, had conduct of this case from the outset.  He heard the abuse of process argument and it was his decision, on 25th April, to refuse the adjournment that is in issue in his claim.  
5.	Shortly after the trial date had been fixed, the claimant submitted a request for the trial to be adjourned indefinitely because he was suffering from stress and he also sought to try to appeal against the abuse of process decision.  He did not attend the pre-trial review which was ordered for 10th January but it is clear from correspondence that he was told that he need not attend that review.  There were various applications made by him and eventually, on 21st January, he submitted a medical certificate indicating that he could not attend court due to stress.  It was a certificate obtained from his general practitioner.  The District Judge was informed of that but indicated that the witnesses should remain warned to attend.  On 24th January, the defendant did not attend, albeit the prosecution witnesses were present, but the District Judge, having seen the medical certificate, agreed to adjourn the trial and a fresh date was fixed for hearing on 25th April 2005.
6.	There were various other applications made by the claimant, including further applications to this court.  Those applications, to try to obtain further discovery, to get interim relief of one sort or another, were rejected but always on paper.
7.	However, there was an indication by the Administrative Court that 15th April was fixed for the claimant to renew his permission application. That application was renewed on that date to the Divisional Court.  The court order states that the claimant was in person and that the defendant was not present or represented.  The order is, it seems, somewhat misleading because it is relatively clear that the claimant did not in fact attend those proceedings.  One gets that, if for no other reason, because the record of the court order indicates that the hearing took five minutes and it is quite impossible to conceive that, if the claimant had attended, the court would have disposed of the matter within that short a period of time.  In fact, there is further evidence which suggests that he did not attend this court.  Thus, although he had various proceedings in being and was able, quite clearly, to express himself at length in writing, he did not attend in person.
8.	On 20th April, he submitted a lengthy document with a covering letter to the court explaining why he could not attend on the 25th.  The letter gave his reasons, which he summarised as follows: first, that he had received death threats and he had been stalked and attacked and he was afraid that he would be at physical risk if he attended court; secondly, his doctor had stated that he was still suffering from extreme stress and that this condition had been made much worse as a result of the death threat.  The doctor had certified that he was unfit to work as the result of that stress and he also referred to breaches of the law and disclosure, thoroughly bad points.  He also enclosed a certificate from the doctor, indicating that he was unable to attend court due to stress.  It is perhaps worth noting that, after the refusal to adjourn, a letter was obtained from the claimant's general practitioner because the general practitioner who normally dealt with him, and who knew his history, was not the one who had issued the sick note.  What the general practitioner whom he did attend regularly said was this:  
"I had seen Mr Price on 19th April when he was suffering from anxiety, poor sleep and panic attacks and medication had been commenced with a view to relieving both anxiety and depression, although Mr Price is aware that this medication is likely to take 3 to 4 weeks to take effect."
And that doctor indicated that the certificate issued on 22th April indicated that he might be incapable of work for 6 months but the inability to attend court related only to a short period on and around 22nd April.  But it is true to say that the doctor went on to accept, and indeed to assert, that a claim of stress, even confirmed and endorsed by a medical practitioner, could not be allowed to stop the legal process, because any one charged with an offence would suffer stress, its seriousness depending, of course, on the nature of the charge.  He concluded: 
"It may be possible for you to consider giving Mr Price the benefit of a further hearing in a few weeks time when hopefully his condition has improved but this would be an act of some generosity and the bottom line is that there is no medical reason in this case for the legal process not to run its course."
9.	The court wrote to the defendant on 21st April, advising him that it could not confirm that the case would be adjourned.  The decision would be one to be made by the District Judge and, if he did not attend court, a decision might be taken to proceed even though he had not been present.  A decision might be reached to issue an warrant for his arrest.  There is an issue raised by the claimant as to whether he received that letter before the date of the hearing.  He certainly obtained the medical report on the 22nd.  He says that he contacted the court on the morning of the 25th in order to try to obtain confirmation that the medical report had been received by it.  He says that he was told by whomever he spoke to over the telephone that it had been received and that his case had been adjourned.  His wife has asserted the same.  He says that he telephoned the CPS immediately after that to inform them of the position but, whoever was responsible on behalf of the CPS, possibly Mr Taylor, had left for court so he was unable to speak with him.  
10.	That is denied by the defendant, denied largely because it is said that it would have been wrong and contrary to instructions for that information to have been given.  It is pertinent to point out that the claimant alleges that he had a somewhat similar conversation in relation to the adjournment in January and his initial evidence was that he had spoken to a Mr Fowler in that connection.  Mr Fowler has given evidence in the form of a statement which shows that he could not have spoken to the claimant and certainly did not speak to him in relation to that issue.  There is very considerable doubt cast upon the claimant's account and, in my view, the District Judge was, in the circumstances, entitled to reject his assertion that he had received any notification that his application had been allowed.  Certainly, I am not prepared, from the state of the evidence before me, to accept that he had been told positively that it had been adjourned.  
11.	Mr Wise submits that his telephoning the CPS and confirmation that he had made telephone calls, although of course not of the content of those calls, on the morning in question, is consistent with his certainly believing that the matter had been adjourned.  That may possibly be the case but whether that was a belief which was based on nothing other than his own hope that that was what would happen, possibly fed by his obsession which had clearly arisen in relation to these proceedings, I do not know.  Suffice it to say that I am not prepared to accept that he was told that the matter had been adjourned.  Obviously, if he had been told that, it would have been wholly wrong for the case to proceed in his absence.  But that, as Mr Wise submits, is not conclusive of this case.
12.	The District Judge had, as Mr Richards submits, been seized of this case from the outset and so was well aware of the factual background and of the circumstances and, in particular, was well aware of the steps taken by the claimant in correspondence with the court, in making applications to the court and in failing to take up the offer of representation which had been made to him.  He had, I think, been represented by solicitors for a short period but they had taken themselves off the record and he had dispensed with their services after a relatively short time.
13.	The matters that were particularly relied upon by the District Judge, according to the lengthy grounds for rejecting the claim, were the length of time since the offence was allegedly committed, the fact that the two principal prosecution witnesses were children and who had to give their evidence via a video link, the need for proceedings to be dealt with efficiently and expeditiously in order to meet the objectives of criminal procedure rules and the fact that there had been a previous adjournment.
14.	The grounds go on to refer to the other litigation in which the claimant had been involved.  What is said is this, and I am reading from paragraph 45 of the grounds: 
"The District Judge had had the conduct of this case from the moment that summonses were issued. His extensive knowledge of the case allowed him to take the view that he was able to balance Dr Ruddles's opinion as to the claimant's ability to attend court, against his detailed knowledge of the claimant's abilities to conduct the several proceedings. As mentioned above, this had included the claimant negotiating an oral hearing of his claim for judicial review, which was listed on the 15th April 2005 and presumably which the claimant intended to attend. In the event, it appears that the claimant advised the High Court that he could not attend due to ill health. It appears that his oral hearing was not adjourned on the 15th April but despite the order at Exhibit No.22 stating that he appeared, the application may in fact have been dealt with in the claimant's absence and his application to stay the trial refused."
15.	There is clearly a distinction between conducting litigation in writing and having to attend court to face a prosecution.  The stress involved in the latter is, I would have thought, obviously likely to be greater than that involved in the former, although, of course, there is the stress involved in any form of litigation.  Nonetheless, having to attend court was a matter which could give rise to a greater degree of stress and could, as it seems to me, properly be a ground for an adjournment because of ill health.  I do emphasise the word "could".  All depends upon the circumstances of the individual case.  What was known to the District Judge, having regard to the history of the matter and the claimant's activities, is of course relevant, as indeed is the statement of the proceedings and the fact there were young boys involved as witnesses and, of course, the overriding need for cases to be dealt with expeditiously.  Equally, it must never be overlooked that a defendant can try to manipulate the court process to avoid having to stand his trial on the basis of medical matters which, albeit persuasive to the doctor concerned, may not in fact be entirely genuine.  Indeed, as Mr Richards submits, had further enquiries been made of the general practitioner and had Dr Williams been contacted, it might well have been shown that the claimant could have attended trial, at least if not immediately, within a very short period of time.  It is fair to say, as I have already read it, that Dr Williams does not go as far as to say that the suggestion that he was unfit to attend court was one which was not acceptable as far as 25th April was concerned.  
16.	To proceed with a criminal trial in the absence of the defendant is a course which should only be taken if it is clear that no unfairness will result.  It is a step which should rarely be taken and then only if there are very good grounds for so doing.  The issue has been before this court and the Court of Appeal, in cases that were heard before the Crown Court, on a number of occasions.  The District Judge was referred to the relevant authorities.  The first that I should deal with is R v Bolton Justices, ex parte Merna [1991] 155 JP 612.  In fact, there were two cases heard together but essentially the issue in each was whether, despite medical certificates that the defendants were suffering from stress and so too ill to attend court, the hearing ought to have continued.  The court pointed out that there was no guidance given in Section 11 of the 1980 Magistrates' Court Act, which provides that: 
"Subject to the provisions of this Act, where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not, the court may proceed in his absence." 
McCullough J, at page 616C said this: 
"Plainly applications to adjourn will be necessitated when there are genuine reasons for an accused being unable to attend court. Equally plainly there will be occasions when unmeritorious applications are made on behalf of defendants who are in fact fit to attend court but have chosen not to do so. The circumstances in which such applications are made will vary widely and, for my part, I would find it impossibly difficult to try to lay down, other than in the most general terms, the principles upon which justices should act. I will say no more than this. The discretion should be exercised judicially. It should be exercised with proper regard to the principle that a defendant is entitled to a fair trial; this must include a fair opportunity to be present to hear the evidence given against him and, should he want to do so, to give evidence in his own defence and call witnesses." 
Then at G he said this: 
"Inevitably, there will be occasions when the justices are not satisfied with the document and may want to hear more.  [That is a reference to a medical certificate.]  They may want somebody to get in touch with the doctor; they may even want to hear the doctor give evidence before them. I am not attempting to lay down any principles. In many cases it may be that the sensible course it to adjourn for long enough for a telephone call to be made to the doctor by a court official or perhaps a police officer and that this will provide confirmation that the accused is indeed unfit to attend. If the justices should, after such an adjournment, still not be satisfied it may be the only reasonable thing to do will be to adjourn again to enable some further approach to be made. It will always be necessary to bear in mind that it is a serious step to proceed with a man's trial for an allegation of a criminal offence in his absence."
In fact, in one of those cases, there had been, I think, two adjournments at least on the basis of alleged unfitness.
17.	In R v Ealing Magistrates' Court ex parte Burgess [1999] 165 JP 82, the Divisional Court decided that the Justices had been justified in refusing an adjournment in a case where, again, the defendant had not attended on the basis that he said he was suffering from a condition which prevented him from attending court.  It is fair to say that, on the facts, it is clear that the medical reports were somewhat unspecific -- the reports and the certificates and the letters from doctors indicated that it was vitally important for the defendant in that case to have complete rest and a further letter recommended complete rest for three months.  Prior to the trial date, the clerk for the justices had written to the applicant saying: 
"'I am in receipt of your doctor's letter relating to your ill health. It has come to my attention that, during the currency of the medical certificate which you have used to excuse non-attendance at this court, you have been attending Feltham magistrates' court in order to prosecute other proceedings. I am therefore not prepared to adjourn the trial. If you do not attend the medical report will be placed before the court as will extracts from the court registers from Feltham magistrates' court. The magistrates will have the power to issue a warrant for your arrest or try the case in your absence if you choose not to attend the hearing..."
The response was to send a further letter from the doctor's partner saying that the defendant was anxious and depressed and was still not fit to attend court.  In fact, on the day in question he sent along a so-called McKenzie Friend with another bundle of documents which he prepared in order to found a submission of abuse of process but the court was not inclined to accept, in the circumstances, that the claimant was indeed suffering such ill health as prevented him attending.  Effectively it was decided to proceed with the trial to avoid the proceedings being pursued.  
18.	The court was referred to the Bolton case and Tuckey LJ, at page 165F, commented: 
"It is apparent ... that the court was not laying down any hard and fast rules for justices faced with this situation to follow.  The question in this case is whether, in all the circumstances, the justices were justified in rejecting the medical basis for the case to be further adjourned. In doing so were they acting unfairly to this applicant?"
And he made the point that a fair opportunity is not an unlimited opportunity because otherwise it would never be possible to proceed in a defendant's absence and, on the facts, the court took the view that the justices had been entitled to decide as they did.  As a postscript, it was noted that once the defendant had apparently got wind of what has happened, appreciating that a warrant was out for his arrest, he had attended at 2 o'clock and was able to make cogent submissions and to suggest that the matter could then be re-heard, which was rather confirmatory of what the justices had decided.  
19.	The question is: where does this case on its facts fall?  It is clear that the District Judge -- I am bound to say I have considerable sympathy with his views -- was of the opinion that this defendant was not genuinely ill.  This does you not mean, of course, that the medical certificate was not a genuine medical certificate.  As one knows, doctors, for understandable reasons, are often dependent to a large extent upon the account given to them by the patient and there is no question but that the claimant was suffering from a degree of stress.  Indeed, he had, as we now know, attended Dr Williams on 19th April and had been prescribed medication which would not take effect for some three or four weeks to improve his situation.  He also faced the added stress, he said, of the threats that had been made against him.  There is certainly some evidence that such threats had been made.  He produced photographs of something which had been written in the snow at some stage outside his house and also a letter that he had received.  In so far as the District Judge relied upon his conduct of other proceedings, it certainly was not the case that he had been taken an active part in the sense of attending court at the relevant time, that is to say around the latter part of April 2005.  
20.	It seems to me, in all the circumstances, that the District Judge should have made some further enquiries of the doctor to satisfy himself that this indeed was not a genuine claim.  Equally, attempts could have been made to contact the claimant to inform him of the dissatisfaction of the District Judge and to require him to take some steps to ensure that further information was properly given or that he attend court if he was fit to do so.  But no steps were taken.  The District Judge relied upon his knowledge of the proceedings.  It seems to me that he may have misled himself in relying upon the other proceedings, that the claimant was involved in.  Equally, although the claimant had hardly helped his cause by the attitude that he had taken in the past and, equally, in his implausible account that he had been informed that the court had adjourned the matter, nonetheless, this was clearly a step which should have been regarded as a step of last resort because, albeit an offence of common assault is not, of course, one of the most serious of offences in itself, the circumstances involving an assault upon a boy may be more so and clearly, from the point of view of the claimant, it was a matter which was, for him, very worrying and very serious.  
21.	In all the circumstances, I am persuaded that the District Judge did not have proper regard to all the material facts and did err in refusing to adjourn the matter.  Of course, the claimant should be put on very strict terms.  Any adjournment should have been for a very short period of time and it should have been made clear, and it is now being made clear, that the claimant will not be able to put this matter off any further.  The delay, which is of course highly unfortunate, has in large part been caused by his activities in seeking the adjournments on the basis of his ill health and in those proceedings before this court.  Accordingly, he should not obtain any benefit from that delay. Quite apart from anything else, even if I had been against him and dismissed this claim, he would then have been sentenced and would have been entitled to appeal to the Crown Court and so the matter would have been re-heard so that the question of delay would not have prevented a hearing taking place.
22.	In all the circumstances, as I say, and with some reluctance, because I take the view that there is not a great deal of merit in the claim, I am persuaded that, in the interests of justice, the decision of the District Judge ought to be quashed and this matter be sent back for retrial as soon as reasonably possible.
23.	MR RICHARDS:  My Lord, there is another hearing in front of the justices at Derby Magistrates' Court, I think, on 14th November.  I speak without looking at my diary. 
24.	MR JUSTICE COLLINS:  That presumably is the sentencing, is it?
25.	MR RICHARDS:  Yes. 
26.	MR JUSTICE COLLINS:  Well, that should be used -- the sensible thing, I think, is that you use that as a directions hearing to set a fresh date and I hope this will be conveyed -- I am sure it will be conveyed to the claimant that he will be a complete idiot if he did not maintain his representation.  
27.	MR WISE:  Certainly that message will be passed on to him. 
28.	MR JUSTICE COLLINS:  You can put it in stronger terms than that.
29.	MR WISE:  I am much obliged.
30.	MR RICHARDS:  But any application, I am sure your Lordship would -- not direct, because your Lordship does not have powers to direct -- but would recommend that any application based upon medical evidence is not one of those very short reports which -- 
31.	MR JUSTICE COLLINS:  No, if there is any further application to adjourn any fixed date because of medical reasons, then it is obvious that they must be full and proper medical reasons; it is not enough to put in a sick note and it must be done, as far as possible, in advance.  But frankly, I think he has run out of chances on that, unless of course he has an accident or catches bird flu. 
32.	MR WISE:  Obviously, one cannot predict what might happen.  The general point is quite clear, my Lord. 
33.	MR JUSTICE COLLINS:  He is not going to get any court sympathy -- or he is not going to get any further sympathy from this court, unless it is -- 
34.	MR WISE:  But the point had been made earlier. In my client's defence, and this must be said, that he has been content for the matter to be retried now for some time -- 
35.	MR JUSTICE COLLINS:  Well, he said so -- 
36.	MR WISE:  -- in his applications. 
37.	MR JUSTICE COLLINS:  He has to put his money where his mouth is, as it were.  
38.	MR WISE:  Well, yes. My Lord, that just leaves the question of costs.  The CPS have attended to resist this application.  
39.	MR JUSTICE COLLINS:  This is a case where, if there is any question of costs, it would normally be out of the central fund.  You do not order costs against --
40.	MR WISE:  Well, we make no application for costs against the Magistrates' Court.  
41.	MR JUSTICE COLLINS:  I do not see really why the CPS should bear the costs. They have properly attended to assist the court and raise any arguments that should be raised.  It is not normal to make an order against the CPS in these cases. 
42.	MR RICHARDS:  And, indeed, this is a case in which we used the arguments presented by the District Judge in order to deal with this matter because-- 
43.	MR JUSTICE COLLINS:  Do not worry, I am not going to make an order for costs. 
44.	MR WISE:  Well, I can see that, my Lord, but before we leave it, with respect, it is not correct to say that it is not usual to make an order against the CPS in these sorts of cases.  It certainly has been done in the past. 
45.	MR JUSTICE COLLINS:  Well, it can be done.  But you normally -- did I grant you, or did someone grant you, a representation order? 
46.	MR WISE:  No, that is on case stated, my Lord, this is Judicial Review. We have a certificate in this case. 
47.	MR JUSTICE COLLINS:  You have a certificate. But it is the Criminal Court N matter -- 
48.	MR WISE:  Yes, but we cannot have central funds and legal aid under the new regulations, your Lordship. 
49.	MR JUSTICE COLLINS:  Well, you can have central funds, can you not, but only if the applicant is in the Divisional Court? 
50.	MR WISE:  I see the Associate nodding now. I defer to her better knowledge of that.
51.	MR JUSTICE COLLINS:  This is no power under the Act for a Single Judge to -- it is an absurdity, because, on a case stated in a Criminal Judicial Review, a Single Judge can deal with the matter, whereas it used to be the Divisional Court only.  
52.	MR WISE:  That is quite right, yes. 
53.	MR JUSTICE COLLINS:  But Parliament has not caught up with that and the Act -- I do not know which Act it is -- only permits the Divisional Court to make an order for costs out of the central fund. Now, it depends really on which central funds they are.  I am not quite sure who is responsible for the central funds in criminal cases.  It may be the Home Office but it is not the DCA, which deals with legal aid.  
54.	As I say, I do not see any good reason to make the CPS pay in this case.  What I am prepared to do, Mr Wise, is to make an order for costs out of the central funds by a Divisional Court, which will make the order in writing without the need for any further representation.  What it means is I find another judge to make it in the Divisional Court for the purpose of costs.  
55.	MR WISE:  I am much obliged.  I think I do need an order for detailed assessment as well.
56.	MR JUSTICE COLLINS:  You can certainly have that. 
57.	MR WISE:  I am much obliged, my Lord. We gave a time estimate for two hours -- 
58.	MR JUSTICE COLLINS:  For once, Mr Wise, you were right.