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 WC2A 2LL
		9 June 2009

1. LORD JUSTICE PILL: The claimant, Mr Mark James, challenges the decisions of a District Judge at Tower Bridge Magistrates' Court on 8 and 29 November 2007, on the first occasion to try him in his absence; and on the second occasion to refuse to re-open the conviction. The claimant had been summonsed for two offences of failing to give notification of a change of circumstances, contrary to section 112(1A) of the Social Security Administration Act 1992. The case involved housing benefit.
2. He entered not guilty pleas. A trial was listed for 19 September 2007. He attended unrepresented, but an adjournment was granted to allow him to obtain legal representation. The date of trial was fixed for 8 November 2007. On 30 October 2007, a legal aid representation order was granted to his then solicitors, Fisher Meredith.
3. On 8 November, in the absence both of the claimant and of his solicitors, District Judge Black found the offences proved. On 29 November an unsuccessful application was made for the conviction to be set aside. The District Judge proceeded to sentence the claimant. He was sentenced to a three-month curfew order, to pay compensation of £4,819.95, and costs of £1,685. The claimant seeks an order quashing the conviction, and for the case to be remitted to the Magistrates' Court for re-hearing. An extension of time has been granted.
4. It is necessary to set out the background in more detail. The offences are alleged to have been committed in 2005. Summonses were issued in December 2006. A representation order was granted in February 2007, but the solicitors to whom it was then granted withdrew their representation on 17 September 2007. Two days later, on 19 September, the claimant attended Tower Bridge Magistrates' Court unrepresented. A representation order was granted, as I have said, on 30 October 2007.
5. I refer first to the record of events on 8 November by reference to the notes of the magistrates' clerk which have been submitted to the court. They are difficult to read. That is no criticism. They are handwritten. If there are lapses in my reading of some of the words, I apologise. I do not think it will affect the sense of what was recorded. The note for 19 September shows the prosecution submitting to the judge that the case was complex to some extent. There was a large bundle of documents. The District Judge stated that any court would need a copy of the bundle. She stated "You need representation", and a representation order was granted.
6. The claimant then approached Fisher Meredith. The present solicitors are a different firm. The note for 8 November records that the claimant had been bailed to 9.45. I assume the court sat at 10 o'clock or possibly 10.30; it makes no difference. The case, we are told, had been listed for one day. The claimant was not present when the court sat, and the District Judge decided to proceed in his absence. The case then proceeded by way of opening and evidence. It is noted that the claimant attended at 12 noon. It is noted that he accepted he had been bailed to 9.45. The note continues: "DJ decides to continue the hearing". Two pages later in the note, there is a reference to a letter from Fisher Meredith by fax as having been received at 12.05pm. I will refer a little later to that letter.
7. Early in the afternoon sitting, a representative of Fisher Meredith appeared and stated that the firm would be withdrawing. The representation order had been received only on 30 October. The court was told that the solicitors were not in a position to represent the claimant. They were permitted to withdraw from the case.
8. The note for 29 November, by which time the claimant's current solicitors were appearing, shows that an application was made to re-open the conviction. That was refused, being noted, first, that the claimant had on 8 November been bailed only until 9.45am. It was also noted that the claimant had been made aware of his section 142 rights; that is the section empowering a Magistrates' Court to re-open cases "to rectify mistakes etc". It was recorded that the claimant was also told that he had an absolute right of appeal to the Crown Court.
9. I turn to the claimant's account of events. He says that he received a letter from the solicitors only on 6 November; that is two days before the hearing date, confirming that legal representation had been granted. He attended their offices on 7 November, but was unable to see anyone to whom to give instructions. On that day he sent a second e-mail to the solicitor acting for him, instructing him to seek an adjournment so that detailed instructions could be given.
10. On 7 November, he again contacted the solicitors and left a message for the solicitor to call back. The claimant then says that, on the morning of 8 November, his daughter, aged 18 months, was rushed to hospital in the early hours of the morning having been sick all night. He accompanied his daughter and her mother at approximately 8.30am. The baby was seen at 9.40am and was discharged ten minutes later. He then left for court travelling by the underground. A record from the Royal Free Hampstead has been submitted. That shows an attendance on the patient at 9.40, a reference to diarrhea, and evidence that a detailed examination of the child was made. It is noted: "Seen with mum", and there is no reference to the claimant's presence. At any rate, following examination, and it was only a matter of minutes, the child was discharged.
11. He arrived at court, he says, at about 11am, and was told that the case was proceeding in his absence. He immediately telephoned Fisher Meredith. He says he believes that they told him that they would get someone to court for 2pm:

"Upon entering the court room the District Judge asked who I was. I informed the court that I was the defendant. I offered an apology for my late attendance. The judge neither acknowledged this nor did he seek an explanation for my late attendance. The District Judge sought to continue with the case."

12. The claimant states that he did attempt to examine the witness, but he did not have the correct paperwork with him because he had gone to court straight from hospital and he was unable to ask questions. On the arrival of the solicitors after the short adjournment, they withdrew from the case and the claimant told the court that he would no longer be participating in the trial as he felt his rights had been abrogated.
13. The solicitors have not of course appeared. Their account appears, as far as we know it, in two letters: one of 8 November 2007, that is the letter received by the court by fax; and the second of 13 February 2008, in response to a letter from the present solicitors. In the 8 November letter they claimed that their understanding was that the case was listed for 2pm. When informed that the listing was in fact for 10am, they contacted the claimant on his mobile telephone and left a message asking him to attend court as soon as possible.
14. They say that they were granted a representation order on 30 October. They did not have any of the prosecution papers. They had been advised that the hearing on 8 November was "in fact a part-heard trial". They said that they would not be able to proceed with the trial without having seen the prosecution papers. They would also require a transcript of the evidence given at the first part of the trial. They then in this letter seek an adjournment of six to eight weeks of the "part-heard trial". They say if that can be agreed, it can be done in their absence. If not, they would attend court as from 2pm.
15. By way of further explanation in the second letter, they confirmed that they understood the trial to be a part-heard trial, and that they were not in a position to represent the claimant at the trial:

"We took the decision that it was in Mr James' best interests for this firm to ask for the Legal Representation Order to be revoked and then if convicted to appeal the conviction to the Crown Court under a new order.

District Judge Black agreed to revoke the order and we withdrew from the case. Mr James then decided to take no further part in the proceedings despite advice to the contrary."

16. I have to say that the material before the court from the claimant and his solicitors raises serious suspicions and doubts about both his conduct and that of the solicitors in the period leading up to and on the date fixed for the trial. The solicitors are not present today, but it is necessary to consider their conduct on the available material as a part of assessing the overall circumstances in which the quashing of the convictions is sought.
17. It is very surprising that no action was taken by the solicitors at an earlier date. I am told that they knew the hearing was fixed for 8 November. It is only on 6 November, two days before, that notification is received by the claimant of the grant of a representation order. I find it surprising that no steps had been taken following their instruction to pursue the application for a representation order, and when it was not available until as late a date as that, to be in touch both with the claimant and with the court to seek an adjournment or take other appropriate action. Nothing was done, it appears, until the claimant himself received their letter and appeared at their premises on 7 November.
18. I find it surprising also that the claimant himself, knowing the imminence of the hearing date, the complexity of the matter and the basis on which it had been adjourned in September, did not take further action with his solicitor to find out what was going on and seek advice as to what should be done. It is a surprising feature that neither the claimant nor his solicitors appeared at court at the time fixed for the hearing. The claimant made no attempt to notify the court or his solicitors that a domestic crisis had arisen.
19. I have referred to the absence of any reference to him in the hospital note, but I make no findings as to his presence. It would be unfair to do so without further material, just as it would be unfair to make any final findings in relation to the solicitors. However, it is difficult to reconcile his account of the events of that morning with that of the solicitors. He says that he told them at 11 o'clock. They say that, having discovered the hearing was fixed for 10 o'clock, it was they who told him. He says he was at court at 11am. The court record shows him appearing at 12.05pm.
20. It is surprising that when the solicitors did appear at court, they did not pursue or renew the application for an adjournment which had been expressed by fax to the court. By then they knew the full circumstances. It is also surprising that the claimant himself, when he appeared in the morning, did not attempt to explain to the court the reason for his delay. Reliance is placed on his unfamiliarity with court proceedings. On the face of it, it is also surprising that the solicitors simply withdrew from the case rather than pursuing the adjournment application.
21. The application made at the hearing on 29 November was properly made. There was no attempt to analyse, in the way that this court with counsel's help has done this morning, the events of and leading up to 8 November.
22. Notwithstanding the reservations I have about the reasonableness and accuracy of the statement of the claimant and his then solicitors, which I have attempted to analyse on the limited material available to the court, certain basic facts remain. The first is that, with the support of the prosecution on 19 September, the court decided to adjourn the case in order that legal representation be obtained. The court acknowledged the bulky documentation involved. Secondly, the court note we have is a limited note. The District Judge has not expanded on the account and the clerk has not expanded on the account of events of 8 November. I do not criticise that or find it surprising. Quite a full note has been provided, and I have referred to the material parts of it. However, what is absent from the note is any reference to an enquiry made by the court when the applicant did appear (the court note shows at noon) as to why he was late. It appears from the note, and that is all that I have to go on, that once it was established that the claimant had been bailed only to 9.45, the District Judge decided to continue the hearing.
23. I well understand the frustration of a judge who has already adjourned the case once and has set aside a whole day for the trial to find an applicant arriving an hour and a half or two hours late (based on the note), but no further inquiry was made. Arguably, had an enquiry been made, there was a good reason for the unfortunate delay which had occurred.
24. Moreover, on the receipt of the solicitors' letter, no further enquiry was made, and no consideration given to whether, in the event, given the mistake of the solicitors combined with the domestic problem of the claimant, it was appropriate to adjourn the case to another day. There is no escaping the absence of further documentation or explanation following the court's perceived need as of 19 September that there should be legal representation. The claimant has no record of failing to appear at court. We are told he is a man of good character.
25. In those circumstances, the court proceeded with the case when the claimant was unrepresented. Even if the solicitors were at fault, the test is whether the claimant has had a fair trial. Miss Goodall, who appears on his behalf, has referred to the appropriate Practice Direction under the heading "Trials in absence". That provides at I.13.18:

"The court must exercise its discretion to proceed in the absence of the defendant with the utmost care and caution. The overriding concern must be to ensure that such a trial is as fair as circumstances permit and leads to a just outcome."

26. The direction goes on to refer to the speech of Lord Bingham in R v Jones [2003] 1 AC 1, and the paragraph I have read accurately reflects the statement of principle made by Lord Bingham in the case.
27. Other cases have been referred to, including R v Camberwell Green Magistrates' Court ex parte Ibrahim [1984] 148 JPL 400. Taylor J, as he then was, stated at page 404:

"In my judgment, it is unfair and contrary to the interests of justice that simply because the applicant arrived half an hour late, she should be barred for ever from raising such defence as she wishes to what could be regarded as a serious charge."

28. I have come to the conclusion that these convictions must be quashed. I have expressed understanding, I hope, of the position of the District Judge, who decided to proceed. But applying the principles stated in Jones and other cases, in my judgment there has been no fair trial, and the circumstances were such that an adjournment should have been granted.
29. Further, on 29 November, when the court was appraised (not to the extent we have been) of the circumstances, a re-hearing should have been ordered. Accordingly, and subject to my Lord's view, I would quash the convictions and remit the case to the Magistrates' Court for re-hearing.
30. MR JUSTICE CRANSTON: I agree.
31. LORD JUSTICE PILL: Do you have any applications, Miss Goodall?
32. MISS GOODALL: My Lord, there are two. I am at this stage of the proceedings publicly funded, so for the purposes of that I would ask for public funding assessment. However, when the matter came previously before the court for an application for leave, I was not publicly funded as leave had been originally refused on the papers and I was previously funded for that hearing. I had made an erroneous application at that hearing of their Lordships as to whether public funding could be extended for the purposes of that hearing. They indicated --
33. LORD JUSTICE PILL: When you sought leave?
34. MISS GOODALL: Yes. They indicated that, had they the power, they would do so, but after further researches it appeared that they did not have the power, and in fact the requisite application that I should have made was an application for costs out of central funds for the purposes of that hearing. Therefore, I would respectfully invite that order --
35. LORD JUSTICE PILL: What are our powers to grant it?
36. MISS GOODALL: As I understand it, your Lordships have power to order costs out of central funds for a successful claimant who is not publicly funded.
37. LORD JUSTICE PILL: It is not a representation order you are seeking; it is for costs out of central funds. Would you refer us to the statute?
38. MISS GOODALL: Forgive me, I do not have the relevant provision with me. It is an order that I have certainly seen.
39. LORD JUSTICE PILL: It came up in the last case. Does section 16 apply to cases stated or judicial review?
40. MISS GOODALL: Forgive me, I do not have section 16 with me, but certainly I would understand it to be under the Prosecution of Offences Act.
41. MR JUSTICE CRANSTON: II.3.1 of the Practice Direction says:

"In the Administrative Court the court may make a defendant's costs order on determining proceedings in a criminal cause or matter."

42. MISS GOODALL: This would be a criminal cause or matter arising out of an adjudication from the Magistrates' Court. (Pause)
43. LORD JUSTICE PILL: You have the good fortune that my Lord has, through his own researches, produced this document.
44. MISS GOODALL: I am very grateful, and I apologise I did not have it to hand.
45. LORD JUSTICE PILL: To cover what proceedings?
46. MISS GOODALL: It was post-leave being refused on the papers up until the point of leave being granted by the full court. Thereafter, a public funding order was granted again. So it was that interim period for the hearing for leave before the full court.
47. LORD JUSTICE PILL: And you are not seeking it to backdate to the Magistrates' Court proceedings?
48. MISS GOODALL: No, I am not. I am thinking of that limited period.
49. LORD JUSTICE PILL: Yes, you may have that order. You must please set it down so that the associate has the accurate terms of it. But you have an order covering today in any event.
50. MISS GOODALL: I do. I am publicly funded for the purposes of today, so I would simply ask for a public funding assessment.
51. LORD JUSTICE PILL: Yes, for the leave application.
52. MISS GOODALL: It is the leave application that I seek funding from central funds.
53. LORD JUSTICE PILL: And you want them assessed?
54. MISS GOODALL: Today's public funding assessment for the purposes of the funding order.
55. LORD JUSTICE PILL: Yes, you may have the usual direction. One only does that on a final order, but I think this should be treated as a final order for present purposes. So you have a direction for taxation or assessment of today's proceedings. You have, to the limited extent indicated, a defendant's costs order.
56. MISS GOODALL: I am very grateful. Thank you.