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
		6 December 2012

1. MR JUSTICE COLLINS: I will ask Sharp J to give the first judgment.
2. MRS JUSTICE SHARP: The claimant, James Killick, applies for an order quashing his convictions at the West London Magistrates' Court on 16 February 2012 for two offences: plying for hire without a licence contrary to section 7 of the Metropolitan Public Carriage Act 1869; and using a motor vehicle without third party insurance contrary to section 143 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
3. The claimant was arrested for these offences on 28 October 2011 in the vicinity of Paddington Railway Station. He was interviewed and charged the following day and released on bail pending a hearing on 8 November.
4. He appeared unrepresented at West London Magistrates' Court on 8 November and entered a not guilty plea. A trial date was set for 16 February 2012.
5. On 9 February 2012 an application was made to vacate the trial date for reasons which are unconnected with this application and which were resolved, so the trial remained listed.
6. On 13 February 2012 the claimant's then solicitors, MAJ Law, wrote to the Magistrates' Court asking that the trial date be vacated for three months so that the claimant could receive medical treatment. The solicitors attached to that letter a medical certificate dated 10 February 2012, written in manuscript by the claimant's GP, Dr Chaudhury. It said that the claimant had been suffering from severe depression and anxiety over the last two years, identified his current medication and concluded: "Currently he is not in a fit mental state to attend court."
7. The letter from the solicitors said: "We are particularly concerned that the medical condition relates to mental health and that our client has been referred to a psychiatrist."
8. The case was listed for an application to adjourn on 15 February. The claimant's solicitors, privately instructed, did not attend, to save costs. The application was opposed and it was refused by the District Judge. No reasons are recorded on the Magistrates' Court file for the refusal. The case therefore came on for trial on 16 February. The claimant did not attend on this occasion either, but he was represented. The Crown applied for the trial to proceed in the claimant's absence, and that application was opposed.
9. The magistrates found no reason to go behind the decision made on 15 February and accordingly permitted the case to continue. The claimant's representative then withdrew and the trial continued with the claimant neither present nor represented. He was duly convicted of the charges to which I have already referred, and sentencing was adjourned to 23 February 2012.
10. On 23 February the claimant's representatives attended again and provided the court with a report dated 21 February 2012 from a Consultant in Forensic Psychiatry, approved under section 12(2) of the Mental Health Act, Dr Rutherford. His conclusion was that the claimant had a severe schizo-affective psychotic illness which was not fully responding to his current regime. He said the claimant was suffering from paranoid delusions and command auditory hallucinations, which Dr Rutherford specified, and, in addition, depression. He said the claimant's illness was stress related and had recurred since his arrest in October 2011, and that the stress of the court case was exacerbating his condition.
11. Dr Rutherford said that the claimant needed urgent assessment by the community mental health team and to have his medication reviewed. He also needed to be reviewed regularly until his condition was stable. In Dr Rutherford's opinion, the claimant was currently unfit to plead and was not fit to attend court. He went on to say he would be grateful if the court could adjourn for a period of 6 months so the claimant could receive appropriate treatment and recover sufficiently to enable him to regain his fitness and attend court.
12. In the light of the report an application was made to re-open the claimant's conviction in his absence, pursuant to section 142 of the Magistrates' Courts Act 1980. That application was made to the District Judge. The District Judge refused the application to re-open the conviction or to adjourn sentence, and sentenced the claimant in his absence to a fine of £320 for plying for hire and 6 months disqualification for driving without insurance.
13. The District Judge, in evidence placed before the court, cannot now recall the application that was made, nor the reasons he gave for refusing it, save to say that he rejected the conclusions of the report, and in the event proceeded to sentence in the claimant's absence.
14. The claimant's solicitors note that the District Judge said: "It was positively wrong to accept the report given its inconsistency and inadequacy."
15. Sections 11(1)(b) and (2A) of the Magistrates' Courts Act 1980 provide, in summary, that the court may proceed in the absence of a defendant unless it appears to be contrary to the interests of justice to do so, subject to this: that it shall not do so if it considers there is an acceptable reason for his failure to attend. Section 142(1) of that Act provides that a magistrates' court may vary or rescind a sentence or order otherwise imposed if it appears to the court to be in the interests of justice for it to do so.
16. Further guidance is given by Practice Direction I.13 of the Criminal Procedure Rules, which refer to the express statutory power in the case of proceedings before magistrates to hear trials in the defendant's absence, and to the fact that the court has a discretion whether the trial should take place in a defendant's absence. It is noted at I.13.18 that the court must exercise its discretion to proceed in the absence of the defendant with the utmost care and caution, and I.13.19 refers specifically to the guidance given by Lord Bingham in R v Jones [2003] AC 1 as to the circumstances to be taken into account before proceeding.
17. The relevant principles to be derived from the decided cases which apply may be summarised as follows:

1. The overriding principle is that the court should not proceed to hear a case in the defendant's absence without satisfying itself that the claim for an adjournment may properly be rejected and that no unfairness will thereby be done (see Evans v East Lancashire Magistrates' Court [2010] EWHC 2108 (Admin) per Munby LJ at 25).

2. The discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. Where a defendant to a criminal charge wishes to resist it and is shown by medical evidence to be unfit to attend court to do so, either as a result of involuntary illness or incapacity, it would be very rarely, if indeed ever, right for the court to exercise its discretion in favour of commencing the trial, or to proceed to hear the case in his absence, at any rate unless the defendant is represented and asks that the trial should begin (see R v Bolton Justices ex parte Merna and R v Richmond Justices ex parte Haines [1991] 155 JP 612, a decision of the Divisional Court consisting of Bingham LJ (as he then was) and McCullough J, and see too the opinion of Lord Bingham in R v Jones at paragraph 13).

3. If a court asked for an adjournment on medical grounds, suspects the grounds to be spurious or believes them to be inadequate, the court should ordinarily express its doubts and thereby give the defendant an opportunity to resolve those doubts (see ex parte Merna op. cit.).

4. A court considering an application to adjourn will need carefully to distinguish between genuine reasons for the defendant not being present and those reasons which are spuriously advanced or designed to frustrate the process. However, if the court comes to the conclusion that either of the latter is the case, it should say so. It cannot simply be inferred that a court has come to that conclusion unless that is clearly stated by the magistrates (see M v Burnley, Pendle and Rossendale [2009] EWHC 2874 (Admin) per Langstaff J at paragraph 22).

5. If a conclusion is open to the court reasonably on the material before it either to the effect that an excuse given is spurious or there is a truly compelling and exceptional reason for proceeding notwithstanding a good excuse for non-attendance, the court has the power to do so. This however will be an exceptional case (see M v Burnley op. cit. per Langstaff J at paragraph 24).

18. Mr Simon Gledhill, who appears on behalf of the claimant, does not complain of the decision not to adjourn the trial on 15 February 2012, but he submits, in the light of the relevant legislation and authority, the position on 16 February was different. It was an application to proceed in the claimant's absence, to which different considerations apply to an application to adjourn by a defendant. The lay magistrates' decision was unlawful in particular because they gave no consideration to the principle that a trial should proceed in the defendant's absence only in exceptional circumstances where medical evidence had been provided, as it had in this case. If they were of the view the medical evidence was inadequate, the matter should have been adjourned to enable the defendant to resolve those inadequacies.
19. In any event, by 23 February 2012 he submits the position was wholly different as a result of the evidence of Dr Rutherford. It is said in the circumstances that the decision of the District Judge on that occasion was outwith the range of reasonable decisions open to him, and he failed properly to consider what the report said about the nature and severity of the claimant's illness, or whether it provided sufficient grounds to set aside the conviction or to adjourn.
20. In the result, my conclusions are these. The only medical evidence in support of the application made on 15 February 2012 to adjourn the trial was that of the claimant's GP, which was extremely weak. The District Judge was therefore entitled to reach the conclusion he did; that is to refuse the application to adjourn the trial. It inevitably followed that the trial would proceed on 16 February 2012 in the claimant's absence if he did not attend on that occasion, unless further more persuasive material was placed before court. This did not occur and the lay magistrates were, in my view, entitled to accede to the Crown's application to proceed in the absence of the claimant.
21. I do not accept that a radically different approach was required by the lay magistrates on 16 February to that which was applied by the District Judge on 15 February in all the circumstances, given the central issue to be resolved on both applications and the evidence before the court on both occasions was the same.
22. As it is, I agree with the observations made by Hickinbottom J, who gave permission to apply in this case, that it is not arguable that the decisions made on 15 and 16 February 2012 were unlawful. I have, however, come to the conclusion that the decision not to either set aside the conviction or adjourn the matter on 23 February 2012 was not one that was reasonably open to the District Judge on the material before him, and therefore that the claimant's conviction should be quashed.
23. There was nothing to suggest the medical excuse that was given on 23 February 2012 was spurious. On the contrary, the evidence before the court from Dr Rutherford was that the claimant had been on anti-psychotic medication for three years, was seriously ill and was neither fit to plead or, importantly in this context, fit to attend court. Whilst it appears that the District Judge had reservations about the cogency of the report of Dr Rutherford and its conclusions and therefore rejected it, he gave no reasons for doing so. Nor did he draw attention to any factors, persuasive or otherwise, of a truly compelling or exceptional nature for proceeding, notwithstanding a good excuse for non-attendance.
24. In my judgment, applying the principles to which I have referred, the District Judge should at the very least have given careful consideration to putting the matter back for further enquiries to have been made, if he was not persuaded by the evidence that was before him on that occasion. I therefore conclude that the District Judge erred in law in his approach to the section 142 application, and in all the circumstances, as I have indicated, it is my view that the convictions of the claimant should therefore be quashed.
25. MR JUSTICE COLLINS: I agree that the decision on 16 February was one which was not unlawful, but that the decision on 23 February to refuse to set aside the conviction, or at the very least to adjourn to enable the claimant to attend and produce evidence of his position, was. In fact, the reality is that what should have happened on the 23rd was that the application under section 142 should have been allowed.
26. The result of our decision is that the section 142 application ought to have been allowed. In those circumstances, there is no room for the conviction to remain in being. So the right result is, as my Lady has indicated, that we should quash the conviction. It will be for the Crown Prosecution Service to decide whether they wish to pursue the matter afresh.
27. MR GLEDHILL: My Lord, just so I am clear, the convictions have been quashed and am I understanding correctly my Lord is saying that there will still need to be a reconsideration of the section 142 --
28. MR JUSTICE COLLINS: Technically that may be the position, but as we have decided that the decision not to allow the 142 application was wrong, it seems to me in any event that it is a little pointless to send it back for it to be reconsidered, because the only proper result would have been to allow it, and in those circumstances the convictions cannot stand. I have been a bit technical, but I think -- because of course the conviction was 16 February and we have not overturned that. What we have said was unlawful was the 23 February application, and I suppose in theory it is possible that we should not go further than simply saying it has to be reconsidered, but I think theory should not prevail over reality, is what it boils down to.
29. I think in those circumstances the right order for us to make is to say that the decision of 23 February was the wrong decision. The application ought to have been allowed and therefore the convictions must be quashed.
30. MR GLEDHILL: So there is no obligation on my instructing solicitors to re-list the section 142 --
31. MR JUSTICE COLLINS: No, I think not. I think the matter goes back now for the prosecution to decide whether they wish to proceed with the matter.
32. MR GLEDHILL: I am grateful. (Pause)
33. MR JUSTICE COLLINS: As my Lady indicates, it would be quite impossible in reality for the matter to be reconsidered now after such a lapse of time, because we have got to look back to what the position was then. What his position is now is a different matter.
34. MR GLEDHILL: And may well be persuasive on the decision to re-try, but that is a separate issue.
35. MR JUSTICE COLLINS: Although of course the alleged offences were committed some time ago, it is not so long ago as makes it impossible for the matter to be dealt with again, if that is the decision that the CPS believes to be the correct decision.
36. MR GLEDHILL: I am grateful.