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
		19 May 2015

1. SIR BRIAN LEVESON, PQBD: On 9 April 2014, before District Judge Jabbitt at Willesden Magistrates' Court, this appellant was convicted of offences of assault by beating and criminal damage to a value less than £5,000. He was sentenced to a term of imprisonment concurrently to a term then being served. He now appeals against conviction by way of case stated.
2. The history of these proceedings can be summarised shortly. It was on 30 April that the appellant's then solicitors applied to the Magistrates' Court to state a case for the opinion of the High Court. The question which they wished to pose was this:

"Is the court's decision to find the defendant guilty of common assault and criminal damage to property valued under £5,000 a safe conviction when the defendant had not voluntarily absented himself but was nevertheless denied the opportunity to give evidence as part of his defence?"

3. That question contains within it a number of assumptions. In the event, the district judge agreed to state a case in which he posed two separate questions:

"1. Is it right for representations to be made to ask me to state a case when those issues were not raised at the summary trial?

2. If it appropriate, was my decision correct to continue the trial without an order that he be brought into court by SERCO in the circumstances pertaining at the time?"

4. These questions and the draft case were circulated to the parties and no objection was made to the terms of the questions in the case as posed by the district judge, either on behalf of the appellant or indeed on behalf of the Director of Public Prosecutions. As a result, the case was finalised on 5 August 2014. In February 2015 there were discussions as to the listing of the appeal. It was listed for today approximately three months ago.
5. On 16 March, the solicitors who had acted for the appellant throughout wrote to the court in relation to the forthcoming appeal to be heard on 19 May, apologised but explained that they had become "professionally embarrassed" and had "no option but to withdraw from acting for Mr Mendes". The letter goes on:

"Prior to this letter, we spoke with Mr Mendes and explained the circumstances in which we withdraw and set out the options available to him so that this email does not come as a surprise to him.

To assist the Court, we provide the last known contact details of Mr Mendes..."

The letter then identifies a residential address, the appellant clearly having been released from custody. The appellant's solicitors were given leave to come off the record, having been informed of the process to be adopted, which of course includes the discharge of the funding certificate in their favour.

6. In the meantime, the respondents served a skeleton argument, but nothing was heard from or on behalf of the appellant until 6.43 pm yesterday, when an email was received by the Administrative Court Office from a second firm of solicitors to the effect that they had been asked to take over conduct of the matter but that, given the time constraints, it had not been possible so that the appellant would not be represented at the hearing. The letter goes on to identify a requirement for sufficient time to prepare, with counsel not available for at least five to six weeks. That letter was not received in time by the Crown Prosecution Service, and Mr Chinweze has been here this morning to deal with the appeal.
7. The appellant in this case has known that the appeal has been due to be heard today for a considerable time. He has known for at least two months that his then solicitors would not be able to act for him. He has had more than enough time within which to instruct new solicitors to conduct the case on his behalf. It is simply not acceptable that an application to adjourn should be received hours after the close of court business on the day before the hearing, and that it should be just acceptable that the time of the court should be lost, the costs incurred by the respondent lost, and that the court should simply be prepared to adjourn to some time in the future. There is no good justification for the application and I for my part would refuse it.
8. On that basis, the court embarked upon a consideration of the merits. That requires a recitation of the facts of the case. We quote from the findings of the district judge:

"On 28 February 2014 the defendant refused to come into the dock from the cells, claiming that he had not been properly charged with the offences. He was remanded in custody to appear by video link, he was also in custody on other charges to another court. On 7 March 2014 he appeared by video link, unrepresented and was remanded in custody until 14 March when he was represented and the trial date was fixed.

I was given a brief history of the case by my Court Associate and warned that Mr Mendes could be difficult to manage. I was also given a skeleton argument from the defence before the trial asserting that a failure to be lawfully charged was fatal to the case against the defendant. The defendant was represented by ... counsel.

The defendant appeared in the dock with a walking stick and refused to sit down, demanding to speak to his representative in a loud voice. He began shouting at a dock officer who told him to sit down. He would not listen to the officer and despite my attempts to intervene he would also not listen to me. Finally when it was apparent he would not desist, I ordered him to be taken back to the cells. As he left he shouted at [counsel] 'you are sacked' and 'I don't want you to represent me'.

I put the case back for counsel to see Mr Mendes and she returned to say she remained instructed. I said in view of Mr Mendes' disruptive behaviour in court I proposed to hear the prosecution case in his absence and would then review the position. [Counsel] put forward no submissions to the contrary..."

The district judge then deals with the voir dire on the timing of the charges and dismissed a third charge as a result. The stated case goes on:

"[Counsel] said her instructions were that Mr Mendes would plead guilty to the criminal damage charge. Counsel made no submissions that the defendant should now be brought into court and, in any event, only a short time had elapsed and I proceeded to hear the prosecution case. A brief synopsis is relevant to the later decision that I made.

I saw CCTV of the interior of the Oakham Loan Shop and heard evidence from an employee, Mr Kamara. Mr Mendes, who was six foot and of large build, was refused a loan and then demanded some paperwork that had been put in the confidential waste bin. When this was refused, the CCTV showed him taking hold of the secure bin, dragging it outside and upending it onto the road disrupting local traffic. Mr Kamara told me that when he went outside to photograph the defendant, Mr Mendes tried to strike him and then succeeded in striking him with his walking stick on his hand. The witness was cross-examined. The rest of the case was then read.

I then reviewed the decision to have the defendant removed. This was my decision and counsel did not apply successfully to have the defendant brought up to court. I did ask for him to be brought up. My Court Associate ... rang the SERCO manager in the cells. [The Associate] was informed that they were not prepared to bring the defendant into the court. I asked [her] to call them again to find out why and she was told that Mr Mendes would not relinquish his walking stick in order that he could be handcuffed. They said he was a danger to their staff, if he could not be so handcuffed.

[Counsel] was informed and made no submissions.

I considered the position. I had the option if I disagreed of contacting senior management at SERCO to ask them to override the decision. I decided the defendant's behaviour throughout proceedings had been disruptive and his refusal to relinquish his walking stick, bearing in mind I had just heard evidence of him striking a person with it, justified, wholly exceptionally, my decision that he was not to be brought into court by SERCO. I formed the view that Mr Mendes would do anything he could to thwart the trial. The right of an individual to participate in his trial is fundamental, and enshrined in Article 6 and only to be removed in quite extreme circumstances which I considered existed in this case.

I have never made such a decision before and I considered whether I should go to the cells to see if he would give evidence from there, but his demeanour in court from the moment he was produced and his apparent decision not to wish to participate in a reasonable manner, led me to conclude that this was not a realistic option.

There is currently no provision to allow a defendant to give evidence over a video link.

[Counsel] addressed me on behalf of the defendant. I convicted Mr Mendes and I was informed that he was in custody in respect of a section 18 GBH and that he had a long record for violent behaviour and had served numerous prison sentences. The sentence that I passed was concurrent to his remand status."

The questions which the district judge then posed have previously been set out.

9. The argument advanced by the appellant proceeds on the premise of different facts. By requesting the court to state a case, the consequence of course is that the case as stated stands as the definitive record of what occurred in the proceedings below. Had the applicant wished to challenge findings of fact or to argue based upon facts which were not contained within the case, appeal by way of case stated was not the appropriate way to do so.
10. The first question posed by the district judge concerns the propriety of representations to state a case when those issues were not raised at the summary trial. There may indeed be circumstances where it is appropriate to appeal by way of case stated, but in the context of this case this question does not fall to be answered because in fact the district judge agreed to state a case. Passing on to the second question, the learned judge posed the question for the court in limited terms, namely whether he was correct to continue the trial without an order that he be brought into court by SERCO in the circumstances pertaining.
11. There is no doubt, as the district judge observed, that there are fundamental requirements contained within Article 6, and indeed generally within our law, that a defendant is entitled to be present in court to hear and participate in the trial which concerns him. The principles are beyond argument, but it is equally clear that the court has a discretion to exclude the claimant in certain circumstances. The exercise of that discretion is fully elaborated in a judgment in this court in R v Hayward, Jones & Purvis [2001] EWCA Crim 168 by Rose LJ at paragraph 22, approved by the House of Lords in R v Jones [2002] UKHL 5 at paragraphs 13 and 14. In R (on the application of Ezeugo) v Hendon Magistrates' Court [2010] EWHC 516 (Admin), Nicol J analysed these authorities and said:

"24. Clearly where a defendant is unrepresented it is a serious matter for him to be excluded from the proceedings. Where he would be likely to give evidence or may be entitled to give evidence on crucial matters, the significance of excluding him is ratcheted up yet further still. All of this was manifestly obvious to Deputy District Judge Lyons. However, having said all of that, there does come a point at which a defendant's (even an unrepresented defendant) disruption to the proceedings means that a judge has no choice but to exclude the person concerned from those proceedings. Although the claimant disagrees with the precise terms of Deputy District Judge Lyons' account of what took place, he does agree that he was persistent in pressing his wish to maintain his objection to the Deputy District Judge continuing to hear the matter. He was anxious that he should not later be criticised for failing to take advantage of an opportunity to make his objection known.

25. Whatever the motivation, any party appearing before a court, whether through a legal representative or on their own, must recognise that it is the responsibility of the judge to conduct the proceedings. Litigants may be disappointed or resentful of rulings which the judge has made. They may feel strongly that those rulings are wrong. But the court process can only operate if the litigants against whom a ruling has been made accept that that is the ruling which the judge has given ... It is not a proper means of conducting either civil or criminal litigation to attempt to persist in talking or making some application to the judge who has ruled that the matter has been disposed of.

26. In those circumstances I conclude that the objection to the exclusion of the claimant does not give him grounds for legal challenge by way of judicial review."

12. Exactly the same position applies in this case. Here the appellant was indeed represented and the district judge made a specific finding of fact identified in the case, not now challengeable, that no submission was made that the appellant should now be brought into court. In any event, it is abundantly clear that he considered the circumstances with great care, he reached a decision that was open to him, and in those circumstances I would dismiss the appeal.
13. MR JUSTICE WILLIAM DAVIS: I agree.