England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre 33 Bull Street, Birmingham, B4 6DS
		27/03/2012

Mr Justice Beatson:

Introduction

1. These proceedings illustrate the problems that can arise when short criminal trials are adjourned part-heard, the case is not re-listed for hearing very soon afterwards, and there are then applications for adjournments because of difficulties that arise subsequently. The claimant, Danielle Drinkwater, challenges the decision of the Solihull Magistrates' Court on 19 July 2011 to refuse an application on her behalf to adjourn a part-heard trial, adjourned on 16 March at the close of the prosecution's case and adjourned again on 3 May and 17 June, and to proceed in the absence of her and her co-defendant, Grant Samed. They were then convicted of assault contrary to section 39 of the Criminal Justice Act 1988. The claimant surrendered on the following day, and was granted bail pending sentence, which was listed for 10 August 2011.
2. These proceedings were lodged on 4 August. On 5 August, Langstaff J ordered the sentencing proceedings to be stayed until the determination of the application for judicial review. On 9 November, Lindblom J granted permission and ordered that the claim be heard by a Divisional Court. The court has been assisted by the written and focussed and succinct oral submissions of Mr Berry, on behalf of the claimant, Mr Douglas-Jones, on behalf of the prosecution, and a helpful note containing the factual background and the history of the case and the proceedings below prepared for this court by the magistrate who chaired the bench at the hearing. It was also assisted by additional information provided during the hearing in the light of questions raised and following enquiries made of the defendant and the claimant's solicitor.

The factual background

3. The charges arose out of events on 31 December 2010. Danielle Drinkwater and Grant Samed were alleged to have forcibly entered a house. She was alleged to have assaulted Louise Taylor and he was alleged to have assaulted Daniel Harrison. When interviewed, the claimant said she acted in self-defence. On 3 February 2011 both the accused pleaded not guilty and the trial was fixed on 16 March with a time estimate of one day. Although the claimant and Mr Samed were charged with assaulting different persons, as the charges arose out of one incident it was accepted by all parties that there should be one trial.
4. On 16 March, the claimant and Mr Samed attended the Solihull Magistrates' Court, where the case was listed before a bench of three magistrates. It appears that other matters were listed before the trial, and the prosecution's evidence (there were five prosecution witnesses) took longer than expected. When it became apparent that there was no prospect of concluding the case within a reasonable time after 5 pm, the court decided to adjourn at the close of the prosecution case. On the basis of the additional information provided it appears that the court sat on the trial from about 10.45 am to 12.45 pm and about 2.15 to 4.10 pm. The case was adjourned to 3 May 2011, with the whole of that day set aside for the remainder of the case.
5. On 3 May, the claimant attended court but Mr Samed was in hospital and unable to do so. The magistrates agreed to adjourn his case, but directed that evidence from the hospital explaining his absence should be produced at the next hearing. They also considered whether they could continue with the claimant, but acceded to a submission by the solicitor who acted for both defendants that her case could not go ahead because he was an essential witness in her case. Additionally, since she was also a witness for him, it would not be in the interests of justice to proceed separately. The case was adjourned to 17 June.
6. On 25 May the claimant was diagnosed with depression and started on a low dose of Citalopram, an anti-depressant. On 13 June, her solicitor faxed a letter to the court stating that she would be unfit to attend court for the next two months as a result of severe depression. A medical note ("the sick note") from the claimant's General Practitioner, Dr Rahman, was delivered to court on 16 June. This stated the claimant's case had been assessed on 13 June and that because of "depression and bereavement" she was not fit for work and "unable to attend for court sessions at present", and for a period of "2 months".
7. The claimant did not attend on 17 June, and her solicitor made submissions about her health. The solicitor stated that she had been informed by the co-defendant that the claimant had miscarried when five months into her pregnancy, was suffering bereavement and depression, and had been on medication for about a month but that the medication had not had the desired effect. The prosecution raised concerns about the period and invited the court to proceed with the case against the co-defendant. The prosecution was also concerned as to whether the complainant in the claimant's case would be willing to come back a second time, because she had found the experience of giving her evidence on 16 March upsetting.
8. The chairman of the bench's note to this court stated that the magistrates were concerned that the claimant's solicitor had not spoken to her directly or made any real attempts to find out more about her medical condition. There was discussion about a short adjournment to allow the solicitor to obtain further information. The note stated the bench was advised by its legal adviser. The advice included reference to guidance given in November 2008 by the then Senior Presiding Judge about medical certificates. The guidance stated that, if a medical certificate is accepted by a court, this would result in cases being adjourned, but that a court is not absolutely bound by a medical certificate and the medical practitioner providing it may be required to give evidence, or the court could exercise its discretion to disregard a certificate which it found to be unsatisfactory. It stated that as a minimum standard, a medical certificate should set out the date on which the medical practitioner examined the defendant, the exact nature of the defendant's ailment, why the ailment prevents the defendant from attending court, and an indication as to when the defendant is likely to be able to attend court.
9. The bench decided to adjourn the case once again. The chairman's note stated that the decision to adjourn was not because the magistrates accepted the medical note. They were concerned about its vagueness, and directed that further information should be obtained, but adjourned the case until the next available date for the three magistrates to sit together, 19 July 2011. This was a period of just over one month and less than the two month period specified in the sick note. The chairman's note to this court stated that the adjournment was to allow medical evidence to be produced and, if appropriate, for the evidence of the defence to be heard.
10. Dr Rahman, in a letter dated 1 July to the claimant's solicitor, stated that the claimant had been diagnosed with depression on 25 May, and he had prescribed a low dose of an anti-depressant. When he reviewed her on 13 June, she reported that she did not feel any improvement, and he increased the dose of her medication. Dr Rahman also stated that prognosis is variable and that commonly used anti-depressants can typically take 4 – 6 weeks to achieve their maximum effect. He was hopeful that there would be some improvement by the time the claimant's sick note expired on 13 August. Dr Rahman also stated that if the claimant recovered sooner he would advise her that she would be fit to attend court at an earlier date. The solicitor sent this report to the court under cover of a letter dated 12 July.
11. The solicitor's letter to the court dated 12 July stated that it was clear that the claimant would not be medically fit to attend on 19 July, and that this was crucial as it was not simply a case of attending, but having to give evidence and be the subject of cross-examination, as that was the stage of the trial. The letter also referred to a communication from the court, received on 6 July, that one of the magistrates who had sat on the case on 16 March was no longer available due to "an unavoidable commitment". This was stated to present a further problem in relation to the trial and it was suggested that the case remain in the list, not for trial but so that it could be re-listed in the presence of all parties. The legal adviser responded that the case "will remain listed for [19 July at 2:00pm] for the application to be heard in court".
12. In a letter dated 14 July, the claimant's solicitors expressed their disappointment and asked for the matter to be listed before a District Judge (Magistrates) on an earlier date so that the issues could be explored in advance of the hearing. That letter set out the claimant's submissions. These were that the further information as to the extent of the depression and the prognosis had been obtained, there was confirmation of the unfitness of the claimant to attend, and that the trial against her could not proceed in her absence. It was submitted that it would be prejudicial and unfair to continue the co-defendant's trial in these circumstances, and the fact that one of the three members of the court would not be attending because of an unavoidable commitment was an additional reason why the trial should not take place. The legal adviser replied on the same day stating that, while the case would remain listed for trial, that did not prevent the claimant's representatives from making their application. The letter also stated that, given the history of the case, it would be wholly inappropriate for any other bench to consider the matter.
13. A letter dated 13 July from Dr Rahman to the claimant's solicitors stated that if the claimant "were to attend in order to give evidence on her own behalf and to sustain cross-examination, her symptoms are more likely to worsen leading up to the date of court attendance and for a short while afterwards" and that "she may not be able to provide evidence in court to the best of her ability until her symptoms…have become better controlled".
14. Neither the claimant nor her co-defendant attended on 19 July. Their solicitor applied for a further adjournment. The co-defendant was said not to be there because he was attending the Accident and Emergency Department at the local hospital following a head injury sustained the weekend before. The solicitor referred to the doctor's letters dated 7 July and 13 July and submitted that the medical evidence showed the claimant to be unfit to attend court and to give evidence and that to proceed in such circumstances would be wholly unfair and unreasonable. It was also submitted that a bench of two magistrates risked a "hung" decision and that, as both defendants were witnesses in each other's cases, their evidence was inextricably linked. The chairman's note for this court states (paragraph 18) that the prosecution opposed the application, stating of Dr Rahman's letter that "a GP was not a psychiatrist".

The decision of the magistrates

15. The bench was advised by the legal adviser. A full chronology was provided, and attention was drawn to guidance by the deputy Justices' Clerk about the effect of CPS v Picton [2006] EWHC 1108 (Admin), (2006) 170 JP 567, guidance in the Magistrates' Court Bench Book, and the overriding objective in the Criminal Procedure Rules.
16. When giving the reasons of the magistrates for refusing to adjourn the case, the court chairman stated that the history and facts of the case had been considered. There had been two previous adjournments, and that day was the fourth day on which the case had been listed. He stated that the solicitor referred to the claimant's depression being the result of miscarriage, whereas the doctor's most recent letter did not mention this. The chairman also referred to the fact that Dr Rahman stated that commonly used anti-depressants could take 4 – 6 weeks to achieve their maximum effect. He said that seven weeks had passed since the original diagnosis on 25 May, and the 4 – 6 week estimate begged the question of why the doctor had stated on 13 June (the date of his sick note) that the claimant would be unable to attend for two months. The claimant's solicitor informed the court that she did not know why the doctor had not mentioned the miscarriage, and that a colleague had been told by the claimant that the depression had arisen out of the cumulative effects on her of the death of three members of her family. The two magistrates proceeded with the trial. The defendants' solicitor made submissions about inconsistencies in the prosecution witnesses' evidence, and directions were given to the magistrates regarding self-defence and no comment interviews. After retiring, the magistrates convicted both defendants of the offences with which they were charged.

The submissions

17. On behalf of the claimant, Mr Berry submitted that the magistrates had not applied proper caution to the exercise of their discretion to proceed in the absence of the defendants. He argued that the defendant did not consider, or consider properly, the principles to be applied to the trial of a defendant in his or her absence as set out by the Court of Appeal and House of Lords in the case of Hayward, Jones and Burns [2001] 2 Cr. App. R 156 affirmed sub nom Jones [2002] UKHL 5, [2002] 2 Cr App R 9 at 128 (which I shall refer to as Jones and others). The prosecution's statement in its summary grounds that "any further adjournment would have been significant given the history of the case…was likely to be in the order of months" was, maintained Mr Berry in his written submissions, unsubstantiated bearing in mind that there is no evidence that the defendant explored or considered this possibility, or the possibility of the court reconvening soon after 19 July. Mr Berry relied on the decision in Nadour v Chester Magistrates Court [2009] EWHC 1505 (Admin) at [10] where this court regarded it as highly significant that the magistrates in that case had not enquired as to the next available trial date. I, however, observe that that case was one in which this court considered that the magistrates "seemed entirely to have failed to consider the history of the matter", which was certainly not the position in these proceedings.
18. Mr Berry submitted that the decision to refuse to adjourn was primarily due to the magistrates' treatment of the medical evidence. He argued that they rejected the medical evidence on flawed grounds, and this tainted the decision as to adjournment, which was, accordingly, also flawed. The assessment of the medical evidence was flawed because the decision on 17 June to list the case on 19 July notwithstanding the statement that the claimant would be unfit to attend court for a period of two months from 13 June had not been made after a considered assessment of how long the defence would require to obtain the further information requested. It proceeded principally on the basis of the "competing availability of all involved".
19. Mr Berry also contended that the defendant failed to consider whether Dr Rahman should be required to give evidence to resolve the bench's concerns, as suggested in the then Senior Presiding Judge's guidance, and failed to give proper consideration to the fact that the claimant had attended trial on more than one occasion. The court knew from a previous occasion that the claimant intended to give evidence. Her previous attendance and this intention tended to make it less likely that she would voluntarily absent herself from the proceedings.
20. Mr Berry accepted that, in the light of sections 121(1) and (6) of the Magistrates Court Act 1980 and the decision in R v East Durham Magistrates, ex parte Clarke (Divisional Court, 18 December 1995), this was not a free-standing ground. He, however, submitted that on 19 July the temporary unavailability of the third member of the bench was relevant in considering the overall position.
21. Mr Douglas-Jones's written submissions on behalf of the prosecution identified two key issues for this court. The first is whether the decision of the magistrates to proceed in the absence of the claimant in the light of the medical evidence provided by the claimant was Wednesbury unreasonable or vitiated by some other public law flaw so as to render it susceptible to being quashed. The second is whether the magistrates were right to proceed with two magistrates on 19 July when the third member of the court, who had participated in the earlier hearings, was unable to attend court due to an unavoidable commitment. On the second, he submitted there was no irregularity in the change in constitution of the bench.
22. On the first issue, Mr Douglas-Jones submitted that in assessing whether the principles set out in Jones and others were satisfied this court should not only look at what the court did on 19 July, but also what it did and what it considered on 17 June. If this is done, he submitted that, although the magistrates were not referred to Jones and others, in fact the way they approached the questions before them complied with the principles set out in it.
23. Mr Douglas-Jones emphasised the limited nature of the medical evidence, and the absence of a full medical report. He relied in particular on the words of Dr Rahman's letter dated 13 July that the claimant's symptoms were more likely to worsen "leading up to the date of court attendance" and "for a short time afterwards", and that the claimant "might not" be able to give evidence to the best of her ability. The repeated assertion on behalf of the claimant that she was unfit to attend court was, Mr Douglas-Jones submitted, not borne out by the terms of those letters.
24. Mr Douglas-Jones submitted that the magistrates were entitled to conclude that the sick note and the letters inadequately explained the claimant's condition, and to attribute the importance they did to the inconsistency concerning the reason the claimant was suffering from low mood. In any event, the latter did not affect the decision of the court. The magistrates, he submitted, did not reject the medical evidence, but weighed in making the decision not to accede to the application for a further adjournment, and did so in a way that was not unreasonable.
25. The prosecution's summary grounds stated (paragraph 19) that the assertion by the claimant's solicitor that "a medical report and addendum report of Dr Rahman dated 1 and 13 July respectively were obtained and filed with the court is wrong". If this is a contention that the letters were not passed to the court it is simply wrong, because the chairman of the bench, in paragraph 12 of his note to this court, states that the exchange of correspondence between the solicitor and the legal adviser included the letters from Dr Rahman. It may be a contention that the letters were not "reports". It was accepted by Mr Berry that the magistrates had asked for a full report. But, in the context of proceedings such as these, and in the light of the reason the information was required, this would not be proportionate. It would also not be practical in the context of a four week adjournment. I observe that, taking the sick notes and Dr Rahman's letters together, they more than satisfy the minimum standards in the then Senior Presiding Judge's 2008 guidance.
26. As far as the suggestion that the magistrates should have required Dr Rahman to attend, Mr Douglas-Jones submitted that the court had afforded the claimant the opportunity to apply to break the fixture with a full medical report and it was not for the court, after the claimant had only produced the two letters, to vacate the fixture in any event to secure to the doctor's attendance of its own motion.
27. In summary, the prosecution's case was that in the circumstances the refusal to adjourn was justified. The trial had been part-heard for over 4 months with several adjournments. The claimant was represented, and the case had been adjourned on 17 June for her to obtain medical evidence concerning her depression in order to deal with the magistrates' view that the sick note was vague. The solicitors had assured the bench that they would seek authority for the claimant's medical history to be obtained.
28. Mr Douglas-Jones conceded that the magistrates did not expressly consider the likely length of a further adjournment, one of the requirements in Jones and others, see [22(5)(iii)]. But he submitted that they were entitled to consider, as they did, the length of the proceedings since the March hearing. He also submitted that they did consider the disadvantage to the claimant, factor (vi) in paragraph 22(5) of Jones and others. He, however, accepted that this was not fully and clearly expressed and that paragraph 15 of the chairman's note does not make it clear whether the magistrates rejected the submissions on behalf of the claimant on this. But Mr Douglas-Jones submitted that, taking all these circumstances into account, and since the medical evidence obtained did not explain why the claimant had not attended court, or why she would not be able to give evidence on 19 July with safeguards to protect her mental health, the magistrates were entitled to refuse to adjourn the case. The prosecution's summary grounds also relied on the effect of further delay on witnesses' memories as justifying the decision to adjourn.

Discussion

29. My starting point is an observation which is not about the direct issue before us but concerns the underlying and indirect issue. It concerns the problems that arose from the failure to complete the case in the time allocated to the case on 16 March or to re-list it very soon afterwards. In one sense, whatever the outcome of these proceedings, the result will to some extent be unsatisfactory. As the President observed during the hearing, if the claimant's application succeeds it will be necessary to start all over again, fifteen months after the events, and twelve months after the first day of the previous trial. But if the claimant does not succeed, her guilt will have been determined at a hearing from which she was absent and where her evidence that she acted in self-defence and the evidence of her co-defendant was not heard.
30. I turn to the issues that arise in this case. These concern: the approach of the Solihull Magistrates Court; (a) to the application to adjourn proceedings; and (b) in reaching its decision to proceed in the absence of the defendants. As an application to adjourn may often be made because of the absence of a defendant, to some extent issues (a) and (b) overlap. Indeed, since adjournments may be sought for other reasons, issue (a) is wider. In a sense therefore issue (b) can be regarded as a sub-issue, but it involves a vital question about the fairness of a criminal trial. There is a wealth of authority on both.
31. In relation to issue (a), the wider question, the formulation of the relevant factors by Jack J in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin); (2006) 170 JP 567, a Divisional Court decision, has been widely followed. Jack J referred (at [9]) to eight points that emerged from the authorities. The first and second refer to the discretionary nature of a decision by a trial court to adjourn, and the need to pay great attention to expedition in criminal proceedings. It was stated that an appellate court would interfere only "if very clear grounds for doing so are shown". The other points include the likely consequences, in particular the length, of the adjournment, and the need to decide facts while recollections are fresh, the reasons for the application, and whether it arises through the fault of the party seeking it, the history of the case, and whether there have been earlier adjournments, and at whose request and why. Only one of the eight points specifically addresses an application for adjournment sought by the accused. It is stated that in such a case, the magistrates "must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised". Keene LJ gave a short judgment, agreeing with Jack J.
32. In relation to issue (b), the question of deciding to proceed in the absence of the defendant, the classic statement of the position is in the earlier decision of the Court of Appeal Criminal Division in Hayward, Jones and Purvis [2001] 2 Cr App R 156. That decision is not referred to in Picton's case, and it does not appear to have been cited to the Divisional Court. The Court of Appeal was presided over by the Vice-President, Rose LJ. After a review of the English and European authorities, the court set out (at [22]) six principles. I do not set these out in full, lest (as Moses LJ stated in Taylor [2008] EWCA Crim 680 at [20]) mere reiteration detracts from the importance of the words there used. The decision was affirmed by the House of Lords sub nom Jones [2002] UKHL 5, although the House of Lords did not consider the seriousness of the offence was a factor that was relevant to the exercise of the court's discretion: see Lord Bingham at [14].
33. The appellants in the cases before the Court of Appeal and House of Lords in Jones and others had absconded before or during their trials, although before doing so, one of them had unsuccessfully made applications for adjournments based on ill-health. In the present context what is relevant is the principle set out at [22(5)(i)] where the Court of Appeal stated that regard must be had to whether the defendant's absence was "deliberate" or "voluntary".
34. In the context of consideration of proceeding in the absence of the defendant, it is noteworthy that the starting-point adopted in the judgment of the Court of Appeal in Hayward, Jones and Purvis was not (as it was in Picton's case) emphasis on the need for expedition and the discretionary nature of the decision to adjourn or not to adjourn. The starting point was that a defendant has, in general, a right to be present at his trial. The other principles show that this is not an absolute right, but the discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives is one which (at [22(4)]) "must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented".
35. In the House of Lords, Lord Bingham stated (at [6]) that the discretion to proceed in the absence of a defendant is "to be exercised with great caution and with close regard to the overall fairness of the proceedings" and that "a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond". He also stated (at [13]) that "the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution" and "if the absence of a 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". In Armouchi [2007] EWCA Crim 3019 at [10], Hughes LJ stated that proceeding in the absence of a defendant "is a step which ought normally to be taken only if it is unavoidable".
36. With that background, I turn to the circumstances of this case. The magistrates were clearly aware on 19 July that if they refused the application to adjourn proceedings, the case would continue in the absence of the defendants. The question is whether their approach to the exercise of their discretion to so proceed was flawed. As the Court of Appeal Criminal Division stated in Taylor [2008] EWCA Crim 680 at [20], the right to be present at a trial is "not absolute; judgment must in some circumstances be exercised as to whether an adjournment will be of benefit or cause any prejudice".
37. The magistrates clearly had concerns about the adequacy or sufficiency of the medical evidence submitted. It is true that courts are used to dealing with defendants and witnesses who give evidence while not in the best of health, whether on account of depression or for some other reason, and that they are able to make adjustments to deal with such defendants and witnesses. But, although the magistrates had concerns about the medical evidence, as Mr Berry observed, they had accepted it to some extent. When giving their reasons for not adjourning on 19 July, the chairman stated that on 17 June "Miss Drinkwater did not attend and we did not proceed because she had depression…": see paragraph 19 of the chairman's note. Nevertheless, on 19 July they appear to have regarded the claimant's absence as substantially voluntary.
38. I reject the prosecution's contention that the medical evidence impliedly stated "there was nothing preventing the claimant from attending court". The sick note dated 13 June expressly declared that the claimant was unfit to attend court for two months due to depression and bereavement. 19 July was within that two month period. The first of the July letters stated that, if the claimant made a recovery sooner than Dr Rahman anticipated, he would "advise her that she would be fit to attend court at an earlier date". The later letter, dated 13 July, was addressing the specific question of what the effect on the claimant would be should she "have to" give evidence on 19 July, rather than her ability to give evidence.
39. As to the magistrates' view that there were inconsistencies in the evidence about the cause of the claimant's medical condition and the time for which she would be unfit, there was no inconsistency between Dr Rahman's note and his letters dated 1 and 13 July. It is true that the sick note for two months was two weeks longer than the maximum period Dr Rahman stated commonly used anti-depressants typically can take to achieve their maximum effect. But the inconsistency relied on by the magistrates was based on the period from the original diagnosis on 25 May and the anti-depressants then prescribed: see chairman's note, paragraph 19. It did not take account of the increase in the dose of the anti-depressants prescribed on 13 June, and by 19 July, the period of four to six weeks had not elapsed.
40. I also accept Mr Berry's submission that the magistrates did not consider the principles to be applied to the trial of a defendant in his or her absence as set out by the Court of Appeal and the House of Lords in the case of Jones and others. It is perhaps of significance that the material to which the magistrates were referred, and which is annexed to the chairman's note to this court, concerned applications to adjourn but not the specific question of proceeding with a trial in the absence of the defendant. They were referred to a guidance note by the Deputy Justices' Clerk about CPS v Picton in which the factors identified by Jack J are set out, and pages from the Bench Book about applications to adjourn on the day of trial. Those pages also do not specifically address the position where the defendant will be absent. The propositions extracted from the cases referred to in the Bench Book are largely directed to ensure that, as the first bullet-point states, "the circumstances in which an adjournment should properly be granted [on the day of the trial] are very limited". The decision in Jones and others and the approach set out in that case is not mentioned.
41. Apart from the contrast between the formulation of the principles in Jones and others and the guidance in Picton's case, which may in part be explained because the Divisional Court did not consider the earlier case, it is important not to lose sight of the context in which Picton's case was decided. The factors identified in it remain important. But it is noteworthy that some of the authorities reviewed were decided at a time when the delays in the Magistrates' Courts were far greater than they have been more recently as a result of CJSSS ("simple, speedy and summary justice") and other initiatives. The case management techniques now available under the Criminal Procedure Rules also mean that the context in which applications to adjourn are now decided is, or should generally be, different.
42. In the light of this, it is perhaps not surprising that the terms of the magistrates' decision contained in paragraph 19 of the chairman's note do not refer (as the Court of Appeal and the House of Lords did in the case of Jones and others) to the need for the utmost care and caution before commencing or continuing a trial in the absence of a defendant or the factors to which I have referred earlier in this judgment. Mr Douglas-Jones relied on the case of Taylor [2008] EWCA Crim 680 (see summary grounds, paragraph 30), but the facts of that case are very different to those of the present case. The judge had refused to adjourn the trial and evidence by prosecution witnesses was taken on a number of days when the defendant was in hospital. But, unlike the present case, the medical evidence suggested that the defendant's medical conditions, which his GP considered meant he was unable to instruct his legal team, would last for the "foreseeable future", not a limited period. More significantly, having been absent for several days, after the judge refused to adjourn the trial, the defendant returned and gave evidence over five days. He was thus able to put his case before the jury. In the present case, the effect of refusing the adjournment on 19 July inevitably meant that the case would be concluded without the claimant being able to give evidence. Since her case was one of self-defence, although the claimant's solicitor would be able to say what her defence was, her evidence on this issue was of particular importance. The chairman's note for this court does not refer to this factor.
43. In the prosecution's summary grounds, it is stated (paragraph 31(viii)) that the magistrates were entitled to consider the effect of delay on witnesses' memories. That, of course, is one of the factors referred to in the case of Jones and others, but in the particular circumstances of this case, it has a neutral effect. This is because the prosecution witnesses had all given their evidence on 16 March. As far as the defendants were concerned, this factor was irrelevant because they were not there on 19 July and so their evidence would not be heard.
44. For these reasons, I have concluded that this appeal must be allowed. It was suggested that, because the defendants had an appeal as of right which would take the form of a rehearing in the Crown Court, the defendants were not prejudiced. While this is indeed a distinction between the position of a trial in the Magistrates' Court and one in the Crown Court, none of the authorities to which our attention has been drawn have distinguished between the approach to be used in the Magistrates' Court and the Crown Court. In any event, this factor cuts both ways. Before the magistrates, one of the reasons given by the prosecution for not abandoning the trial and having a retrial was that the prosecution witnesses, or one in particular, were not likely to come back a second time (see chairman's note, paragraph 6). The availability of an appeal by way of rehearing as of right meant that they were at risk of having to do this in any event.
45. I should add that there was no irregularity in the change in the constitution of the bench, and I do not consider that, in a context in which the full history of the proceedings was explored and considered by the magistrates, the fact that they did not explicitly address whether they could reconvene soon after 19 July lays them open to criticism. The experienced chairman and the other member of the bench would have known the timetable and their cycle of sitting, and by 19 July the court was in a period when it was more likely that magistrates would be taking holidays.

President of the Queen's Bench Division :


 


46. I agree. I only wish to add some observations in relation to the underlying cause of the delay in this case, a delay which was inimical to the interests of justice.
47. It is self-evident that proceedings in the Magistrates' Courts ought to be simple, speedy and summary. That requires close attention to the Criminal Procedure Rules and active case management before and during the trial.
48. The problem which necessitated the first adjournment in this case appears to have arisen because insufficient attention was given to managing the case so that it was concluded within its time estimate.
49. It appears that at the first hearing a time estimate of a day was given for the case. I can see nothing wrong with that time estimate; it was a simple case which plainly ought to have been concluded within a day. Since the amendment to CPR Part 3.10, a court must consider setting a timetable for the trial of a case. We were told by counsel that, although it was their experience that this was done in the Crown Court, it was not being done in the Magistrates' Courts in cases such as the present. Whether that experience reflects more general practice or not, it is clear that in any case in the Magistrates' Court where a trial is likely to be other than a short one, it should be the ordinary practice for a timetable for the conduct of a trial to be set at the time the trial date is fixed and the estimate made.
50. In setting the timetable, the court should scrutinise the reasons why it is said a witness is necessary and the time examination and cross-examination would take. It is also important in setting a timetable to have regard to the nature of the issues and the fact that the trial is a summary trial; any estimate of more than a day in the Magistrates' Courts should be scrutinised with the utmost rigour. Parties must realise that a summary trial requires a proportionate approach. If a timetable for the trial is not set, it is difficult to have any real confidence that the estimate is accurate.
51. At the commencement of the trial, the Magistrates' Court should check with the parties that the timetable and the estimates remain valid. If there is any variation which lengthens the estimate, the court should make every effort to see if the trial can still be accommodated that day by sitting late or otherwise.
52. Once the trial has started, the court must actively manage the trial, keeping an eye on progress in relation to the timetable. It is essential in a Magistrates' Court, just as the Crown Court, that the court has in mind the observations of Judge LJ, as he then was, made as long ago as 2004 in Jisl [2004] EWCA Crim 696 at paragraph 114-115:

"The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. Resources are limited. The funding for courts and judges, for prosecuting and the vast majority of defence lawyers is dependent on public money, for which there are many competing demands. Time itself is a resource. Every day unnecessarily used, while the trial meanders sluggishly to its eventual conclusion, represents another day's stressful waiting for the remaining witnesses and the jurors in that particular trial, and no less important, continuing and increasing tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials which are waiting their turn to be listed. It follows that the sensible use of time requires judicial management and control.

Almost exactly a year ago in R v Chaaban [2003] EWCA Crim 1012 this Court endeavoured to explain the principle:

…

37. … nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence.

38. In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary even-handedness and flexibility as the interests of the justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does.""

53. There was, it appears, no active management of the trial by the court in the present case so that it concluded within the day. As Beatson J has explained at paragraph 4 of his judgment, the case did not start on time and the court does not appear to have taken any steps during the course of the trial to ensure that it was so managed that it would finish within the day, sitting late if necessary.
54. The consequences of the failure of setting a timetable and actively managing a case in the Magistrates' Courts can be much more serious in a particular case than in the Crown Court. In the Crown Court if a trial does not conclude within the estimate, the case will continue on the following day, although this undoubtedly has a serious impact on other cases as was pointed out in Jisl. In the Magistrates' Court, it is often not possible for a case to continue the following day. Although, where a case does not conclude within the estimate, every effort must be made to see if the trial can continue the following day, there are obvious practical difficulties, particularly given the commitments of the Magistrates and other business that has been scheduled for succeeding days. The practice has thus developed of adjourning a case that has not concluded for a period of two to three weeks, as we are told that that is the sort of time which is needed to find a time at which the availability of a courtroom, staff and, more importantly, the Magistrates, can be secured. A delay in the middle of a case for a period of two to three weeks is plainly inimical to the principles of speedy and summary justice. It is for these reasons and those given in Jisl essential that the closest attention is paid to timetabling, that the case is actively managed and concluded within the estimate.
55. As Beatson J has set out at paragraphs 5-9, there were severe difficulties in fixing the further hearing. The first date at which a continuation of the hearing was attempted was on 3 May 2011, some six weeks after the first day's hearing, a period that no doubt was the shortest period that could be found. That delay is not consistent with the principles of speedy and summary justice. Then difficulties emerged, as is so clearly set out in the judgment of Beatson J, in relation to the health of the claimant and her co-accused. This case therefore exemplifies not only the undesirable consequences of not finishing within the day's time estimate, but the real risks that can arise in such circumstances.
56. As is set out at paragraphs 10 to 13 of Beatson J's judgment, the claimant's solicitor attempted to see if the issue which then arose could be dealt with by a case management hearing without reserving an entire day for a trial which might prove ineffective. In the Crown Court, the question of whether the trial should proceed on 19 July 2011 would have been dealt with at a hearing prior to that date, either by the trial judge or, if he was unavailable, by another judge of the Crown Court. I can well understand the problems that faced the conscientious legal adviser and the restrictions on her ability to deal with the question of an adjournment. It is therefore desirable for some consideration to be given to the rules and practice that apply in the Magistrates' Courts on such occasions. Whereas it is appropriate for this court to emphasise the importance of compliance with the existing Criminal Procedure Rules and the serious consequences that flow from not complying with them, it is better that the issues relating to the best practice for dealing with questions of adjournments arising before the trial date be considered in a wider context.

Post script by the court:

57. After the handing down of the judgment our attention was drawn to the amendment to s.11 of the Magistrates' Courts Act 1980 by s.54 of the Criminal Justice and Immigration Act 2008. We were also informed that no argument was addressed to us on this section because it was considered that the requirement to proceed in the absence of the accused unless it appears to the court to be contrary to the interests of justice to do so did not apply in this case because, in the circumstances of this case, which was instituted by charge and not information, section 11 did not apply. We were not required to consider section 11 and make no comment on whether it does apply to the facts of this case. But, even if it did, in the circumstances of the case, it would have made no difference to our decision, as it would not have been in the interests of justice to proceed in the absence of the claimant.