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
		11 May 2012

1. LORD JUSTICE RICHARDS: I will ask Treacy J to give the first judgment.
2. MR JUSTICE TREACY: This is an application for judicial review of a decision of the Medway Magistrates' Court, sitting on 18 June 2010, to proceed with a trial of the claimant in his absence despite the provision of medical evidence.
3. The case has a long and unfortunate history. The claimant faced a charge contrary to section 4A of the Public Order Act 1986 arising from an incident on 29 May 2009 involving his disabled elderly neighbour. The case was thereafter listed on over a dozen occasions.
4. The hearing of 18 June 2010 was the fifth occasion upon which the matter had been listed for trial, with prosecution witnesses attending on each occasion and, understandably, becoming increasingly frustrated at the lack of progress in the case.
5. On the first listing for trial the claimant did not attend. He had gone to hospital. A medical certificate was supplied. On the second occasion the claimant attended court, but said that he was unwell. He said that he had swine flu symptoms. Court staff sent him away. On the third occasion the claimant did not attend. He supplied a medical certificate saying that he was suffering from pancreatitis. On the fourth occasion, when the complainant had delayed hospital treatment so as to be available for court, the claimant did not attend. The prosecution applied for the case to proceed in his absence. That application was granted. The trial was about to start when a medical certificate arrived at court and was produced to the court, stating that the claimant was unfit to attend. The matter was therefore adjourned again.
6. On 18 June 2010, the fifth occasion, the claimant did not attend court. He was, however, represented by counsel at court. Given the non-attendance of the claimant, the prosecutor applied to proceed in the absence of the claimant. This was opposed. The Bench however decided to proceed and the claimant was convicted.
7. The prosecutor's application was made notwithstanding the production of a hospital discharge certificate and a medical certificate from a general practitioner. The prosecutor submitted that, in the circumstances, the case should proceed if the Bench felt that justice was being frustrated by the claimant seeking to avoid a trial by a process of attrition.
8. In support of the prosecution's application, the Bench was made aware of the following: (a) the protracted history of the proceedings, including the four previous adjournments on dates fixed for trial with the attendance of and inconvenience to prosecution witnesses; (b) the fact that the claimant's general practitioner's medical certificate issued on 17 June 2010 and stating that the claimant was unfit to attend court between 17 and 20 June 2010 as he was suffering from pleurisy had been issued without the general practitioner seeing or examining the claimant. It appears to have been a result of a telephone call made by the claimant to the surgery.
9. These facts had been ascertained by the Crown Prosecution Service and were not disputed.
10. (c) The hospital discharge note recorded that the claimant had been admitted to hospital on 16 June 2010. He was discharged at 8am the same day, having been diagnosed as suffering from pleurisy. He was not admitted to a ward. The history and findings recorded "sudden onset pleuritic chest pain left side. Patient under police custody."
11. A number of investigations were undertaken and the results are shown as normal. No follow-up appointment was made. The claimant was advised to continue on his existing medication, and in addition prescribed a painkiller which should be taken over the course of a week.
12. (d) The reference to police custody was that the claimant had been arrested for being drunk and disorderly on the evening of 15 June 2010. Whilst in custody he had complained of pain and had been taken to hospital for investigation on 16 June.
13. (e) The claimant's medical certificates during the course of the case had shown a number of different ailments. The medical certificates had been produced to the court on those previous occasions by the claimant's legal team or by a friend.
14. In addition to the absences on occasions fixed for trial, at the time of the claimant's initial arrest he complained of chest pain while in police custody and was taken to hospital by the police for investigation, thus missing his first court appearance. In addition to those matters, reference was also made to comments made by the justices' senior legal adviser on the previous occasion when there had been non-appearance, namely on 23 March 2010. The adviser had apparently stated that the Bench could proceed on the next occasion if there was non-attendance, even if a medical certificate was produced, if the Bench was satisfied that the claimant was frustrating justice. This version of events is supported by the note made on the court file on the day in question.
15. The Crown Prosecution Service note, dealing with the hearing on 18 June 2010, contains a full note of submissions made. They too are consistent with the record of 23 March 2010. Defence counsel, who appeared on 18 June, also prepared a note that day after the hearing. He records that the Bench was told that the legal adviser's advice was that the case should go ahead the next time an application to adjourn was made. I will return to this later since the claimant relies on it.
16. At the hearing the claimant's counsel resisted the application. He pointed to the medical certificates and stressed that the court should very rarely, if ever, proceed to try a defendant in his absence if there is a medical note justifying it. He referred to R v Jones [2003] 1 AC 1 in support of his argument. He conceded that if the Bench were to conclude that the claimant was deliberately trying to frustrate the justice system, it could go behind the medical certificate and order the trial to proceed under section 11 of the Magistrates' Courts Act 1980. However, he argued that there had to be clear evidence that the claimant was playing the system.
17. The justices, after retirement, stated that the trial would proceed. They said that they considered that the claimant was deliberately frustrating the operation of the justice system. The full note made by the CPS lawyer gives their decision in quotations, showing that they were "satisfied that the defendant was trying to frustrate justice".
18. Section 11 of the Magistrates' Courts Act 1980 provides as follows:

"(1) 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 ...

(b) if the accused has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so. This is subject to subsections (2), (2A), (3) and (4) ...

(2A) The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear."

19. Mr Restall, who did not appear in the court below, argues that the justices were in error. He makes three submissions. Firstly, there was insufficient evidence upon which the justices could be sure that the claimant was deliberately absenting himself from court and that the medical certificates were based on false information. Secondly, he submits that the justices should not have proceeded to try the case, but should have adjourned and made further enquiries before proceeding to try the case. Thirdly, he submits they wrongly took into account what the senior legal adviser had said on a previous occasion and which had been mentioned to the Bench in the course of the prosecutor's submissions.
20. He submits that this is not one of those rare cases identified in Jones. Given the existence of the medical certificate, the justices should have either granted an adjournment or, at the very least, made further enquiries, and not to do so was wrong and unfair.
21. In his written submissions, he reminded us of paragraph 13 of Jones, where Lord Bingham said in relation to absence for medical reasons:

"I would stress ... that the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin."

22. Mr Restall has referred to subsequent authorities which stress the need for very good grounds, the rarity of such cases, and the need for great care to be taken to avoid unfairness.
23. The respondent's argument is that, in the circumstances, the justices were entitled to make the finding which they did as to deliberate manipulation of the system, and thus they were justified in their decision to proceed. Reliance is placed on R v Ealing Magistrates' Court ex parte Burgess [2001] 165 JPL 82. That case was decided prior to Jones, but it seems to us to be consistent with the principles laid down in Jones. In that case, a trial had been subject to multiple adjournments caused by the claimant's non-attendance which were supported by letters from his doctor. When the case was listed for trial a letter from a general practitioner was supplied, stating that the defendant was unfit to attend. The justices considered the history of the case and did not accept the letter, observing that doctors can be mistaken or misled.
24. Tuckey LJ, in giving the judgment of this court, said:

"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?

The Court has a discretion in such circumstances which has to be exercised with proper regard to the principle that the defendant is entitled to a fair trial. That of course includes a fair opportunity to be present at his trial to hear and test the evidence against him and give evidence on his own behalf. However the words are "fair opportunity" not "unlimited opportunity", otherwise it would never be possible to proceed in a defendant's absence and a defendant would be able to postpone trials indefinitely without the risk that the court would eventually be able to say "enough is enough, we will proceed in his absence"."

25. In the light of the history of the matter, the court in that case was satisfied that the justices had been entitled to proceed as they had. Each case is of course fact-specific, applying the principles enunciated by the House of Lords in Jones. As in the Ealing Magistrates case, it seems to me that the question for this court is whether, in all the circumstances, the justices were justified in holding that the claimant was deliberately trying to frustrate justice on the basis that there was no good reason for his non-attendance, notwithstanding the medical documentation produced.
26. It seems to me that the justices were entitled to make the finding which they did and were justified in doing so. They clearly stated, according to the full record made by the Crown prosecutor, that they were satisfied that the claimant was seeking to frustrate justice. They had taken account of the medical certificates and what could be gleaned from them. They had heard the competing submissions, including strong reliance by defence counsel on the case of Jones. They had the history of the case laid out before them, and they concluded that, despite the existence of the certificates, the claimant was in reality seeking to frustrate the process of justice. This, it seems to me, was a conclusion to which they were reasonably entitled to come. The matter had been fully argued on a proper legal basis, with room for the justices to form a conclusion based on their appreciation of the factual situation in the case and taking account of its history. Having regard to the content of the documentation and the way in which it had come into being, there was, in my judgment, ample scope for the justices to go behind it.
27. Insofar as there was controversy about what was represented as being the advice of the legal adviser given in March 2010, the notes from two different sources, in my judgment, are clearly to be preferred to the recollection of defence counsel. They are, moreover, consistent with what the law requires. I place particular reliance on the contemporaneous note made in March 2010 by the court clerk. In any event, it is quite clear that the hearing with which we are concerned, namely the hearing of 18 June 2010, was focused on the merits of the situation on that day, and that correct legal principles were being laid before the justices. There is nothing in the materials which I have seen which suggest to me that an incorrect approach was taken by the justices on that day. There is nothing to show that they did not make their own decision based on the materials placed before them, and there is no evidence before me that they had fettered their discretion in any way by reference to the observations of the senior legal adviser on a previous occasion.
28. The material which I have seen suggests to me that what he had said on a previous occasion was in fact legally unobjectionable, and that those comments had been put before the court in a proper and accurate way on 18 June. The very terms of the justices' decision support this conclusion. They clearly focused on the question of whether, notwithstanding the medical certificates before them, the circumstances and history of the case showed that this was a deliberate attempt by the claimant to frustrate justice. They indicated that they were satisfied that this was the case.
29. I therefore do not consider that this point takes the matter any further, and as to the submission that the justices should not have been informed of what the legal adviser had said on a previous occasion, I disagree. It was relevant material for the justices to know as part of the history of the case, and indeed they could regard it as a form of warning to the claimant as to the potential consequences of any further absence by him from court on the day fixed for trial.
30. The further point raised by Mr Restall relates to his submission that the justices should not have proceeded to make a decision, but should have made further enquiries. Initially the submission made before us was that something further should have been done by the justices. When Mr Restall was pressed a bit further, he put a variety of suggestions to us, without being specific as to which course should in fact have been adopted. Amongst his suggestions were: further contact with the general practitioner's surgery; checks with the hospital which had issued the discharge note; and putting the case back until later in the day for those enquiries to be made. A further suggestion was that a warrant for the arrest of the claimant might have been issued, and the police allowed to assess the condition of the claimant if they located him.
31. It seems to me that those submissions, which Mr Restall justified by reference to observations in authorities he cited to this court, namely Amrouchi [2007] EWCA Crim 3019, particularly at paragraph 10, and Hodges [2008] EWCA Crim 620, particularly at paragraph 15, failed to meet the point that the justices had, on the basis of the materials put before them, which had been the subject of extensive submission by advocates on both sides, sufficient evidence for them to be sure that the claimant had adopted a course amounting to a deliberate attempt to avoid justice. Once they had come to that conclusion, it seems to me that there was little point in postponing the matter further to make enquiries into something about which they had already made a clear decision to their satisfaction.
32. There would, in my judgment, have been no useful purpose in the circumstances of this case for them to have put the case off. In any event, I do not consider that there was a practicable step, given the nature of the enquiries or steps which have been urged upon us by counsel. The situation which confronted the justices on the day of trial in this case justified them first of all in coming to the conclusions to which they did, and, secondly, in deciding to deal with the matter there and then.
33. Accordingly, I would refuse this application.
34. LORD JUSTICE RICHARDS: I agree.
35. MR MITCHELL: My Lords, the interested party has incurred costs in responding to this application. A schedule has been lodged with the court. My application is for costs to be awarded against the claimant.
36. LORD JUSTICE RICHARDS: We know that the claimant is legally aided, so any order would have to be on the usual basis relating to legally aided parties, the precise wording I always forget, but it will be supplied by the associate. What do you say about costs?
37. MR RESTALL: I do say that it was a properly brought claim.
38. LORD JUSTICE RICHARDS: Brought and lost. Why should costs not follow the event?
39. MR RESTALL: Indeed, and for practical purposes, as I understand it, Mr Tevlin is of no means, so what I can say on the point about the principle is relatively limited. It may be of no real practical benefit anyway.
40. LORD JUSTICE RICHARDS: We will order the claimant to pay the costs of the interested party, the CPS, subject to the usual qualifications relevant to a legally aided claimant.
41. MR MITCHELL: My Lords, can I just correct the figure? There was a figure for VAT included in the schedule.
42. LORD JUSTICE RICHARDS: We do not make an assessment in circumstances of this sort because it has to go off to a costs judge if it is going to be pursued, in any event.
43. MR MITCHELL: So be it. I say no more.