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
		10 November 2015

1. SIR BRIAN LEVESON: On 23 January 2015 Karl Houston was due to appear before Sefton Magistrates' Court to stand trial for an offence of assault by beating contrary to section 39 of the Criminal Justice Act 1988. He did not appear and having given him ample opportunity to attend late, the magistrates rejected an application by his solicitor to adjourn and determined the case in his absence. He was convicted, whereupon the issue of sentence was adjourned and a bench warrant was issued not backed for bail.
2. Six days later on 29 January 2015 his solicitor made an application under section 142 sub-section (2) of the Magistrates' Courts Act 1980 to direct that the case be heard again before different justices. That application was rejected.
3. The result is that Mr Houston now appeals by way of case stated both against the original decision to refuse the adjournment and the subsequent decision by different magistrates to refuse to direct a rehearing.
4. In order to determine these appeals, in addition to the two statements of case, the first being 5 pages in length and the second being 3 pages in length, and skeleton arguments, we have been provided with a bundle of material which includes statements from the Appellant's solicitor (37 pages); the case papers including notes of earlier rulings, the trial and the application (152 pages); and digital evidence in the form of body worn camera footage and a 999 recording.
5. The production of this material demonstrates a lack of understanding of the approach of this court to appeals by way of case stated, which are intended to resolve issues of law and jurisdiction. The purpose of the case is to specify the decision in issue, the questions of law and succinctly to summarise the nature and history of the proceedings, the relevant findings of fact and contentions of the parties and if the question is whether there was sufficient evidence on which the court could reasonably reach a finding of fact, that finding and a summary of the evidence on which it did so.
6. This is not esoteric law. It is set out in part 35.3 of the Criminal Procedure Rules 2015. Once settled, the case stated sets out the four corners of the material which the court will consider. In Skipaway v Environment Agency [2006] EWHC 983 (Admin) Stanley Burnton J, as he then was, made it clear:

"14... There is a surprisingly common misconception that once an appeal by way of case stated is before the court, the parties may refer to evidence, or at least undisputed evidence, that was before the lower court in addition to that set out in the case.

15. On an appeal by way of case stated, the court is confined to the facts set out in the case. It is therefore important that the parties ensure that the case includes all those matters which should be before the court when deciding the issues raised on the appeal. If a party to an appeal considers that the case produced by the lower court omits relevant matters, he should seek to have the case supplemented either by agreement with the other party and the lower court or by application to this court under section 28A(2) of the Supreme Court Act 1981 for the amendment of the case stated."

7. These observations were approved in DSG Retail v Stockton on Tees Borough Council [2006] EWHC 3138 (Admin) by Lloyd Jones J, as he then was, in relation to notes of evidence in these terms at paragraph 21:

"I consider it impermissible on an appeal by way of case stated for reference to be made to such further material outside the record provided by the case stated. The parties to the proceedings below are given an opportunity to make representations on the draft of the case stated. That is now contained in the Criminal Procedure Rules Part 64.22. This is the opportunity afforded to the parties to ensure that all relevant facts are included. If the case is one in which it is contended that there was insufficient evidence on which the magistrates or in this case the District Judge could come to a particular conclusion, the parties have the opportunity at that stage to ensure that the account of the evidence given by the draft case stated is sufficiently complete. In my judgment, it is not permissible to seek to supplement the case stated on the hearing of the appeal before the High Court by reliance on notes of evidence taken at the hearing below and indeed I consider this a negation of the procedure by way of case stated."

8. We underline and emphasise these observations, but having done so I turn to the first case stated and set out the chronology of the proceedings.
9. The allegation was that on 19 April 2014 the Appellant had attacked his father. On 19 June a not guilty plea was entered and the case adjourned for trial on 29 September, although this date was vacated 3 days earlier on 26 September in order to deal with a hearsay application in relation to the father and additionally an application by the defence to adduce his (that is to say the father's) bad character. Significantly, the Appellant attended court on 29 September to answer his bail and he was present in court when he was remanded for trial until 23 January 2015 at 9.45 am. On 21 October both hearsay and bad character applications were granted.
10. The case continues to recite that when the Appellant failed to attend on 23 January his solicitor, Mr Cheminais, expressed surprise and observed that he had attended every appointment. Efforts to contact him by telephone failed. Mr Cheminais asserted that the Appellant was a man of good character who had suffered domestic violence at the hands of his father, but no information could be provided as to the reason for his non-attendance. The prosecution opposed the application to adjourn, relying on the presence of two police officers and a civilian ready for the trial. As previously ruled, the evidence of the father was to be admitted as hearsay.
11. Having adjourned for inquiries to be made and without further information being forthcoming, at 11.00 am the magistrates directed that the case should proceed in the absence of the Defendant, whereupon Mr Cheminais withdrew from the court. It is not suggested that this was at the behest of the bench and for my part, I have difficulty understanding his reasons for so doing.
12. The stated case then goes on to make it clear that the magistrates had considered the provisions of section 11 of the Magistrates' Courts Act 1980 as amended in relation to the application to adjourn.
13. The case then recites the evidence heard from the civilian witness who was an eye witness to events and from a police officer. The evidence is recited, including that of the interview in which the Appellant asserted self defence. This case concludes:

"We were aware that the issue in the case was that of self defence, but the Defendant had not attended the trial and this had not been raised evidentially as he did not give evidence. On the evidence we heard, we were satisfied that the assault by the Defendant was a sustained one, including an assault whilst the complainant was on the ground. Even if self defence had been raised evidentially during the trial, we were satisfied to the required standard that the actions of the Defendant went beyond self defence."

14. Against that background, the case asks four questions. These are:

"(1) Were we correct in determining that the trial should proceed in the absence of the Defendant, having been made aware of the background to the proceedings?

(2) Should we have been specifically referred to the previous convictions and storm logs in respect of the complainant during the trial in the absence of the Defendant or legal representations or submissions made on the Defendant's behalf?

(3) Did we correctly consider the issue of self defence in the absence of that defence being specifically raised evidentially during the trial hearing?

(4) Should we have received a positive good character direction in the absence of evidential confirmation that this was in fact the case?"

15. I deal first with the refusal to adjourn the trial in the absence of the Appellant. So far as it concerns this particular Appellant, section 11 of the Magistrates' Courts Act as amended provides:

"(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)."

Sub-section (2) deals with service or previous appearance and is not material.

16. Sub-section (2A) goes on:

"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."

17. In R (Drinkwater) v Solihull Magistrates' Court [2012] EWHC 765 this provision, that is to say section 11 of the Act as amended, was not brought to the attention of the court and the question is posed in a postscript to the judgment whether it applied to proceedings commenced by charge rather than by information. The answer to that conundrum is that it does. Where a Defendant is charged, the information is laid before the Magistrates' Court at the very latest when the charge is read in open court, as it would have been when he pleaded not guilty, if not earlier: see R (Manchester Stipendiary Magistrate), ex parte Hill [1983] 1 AC 328.
18. As for the substantive decision, the terms of the statute must be considered alongside the authorities. The general principles can be taken from Regina v Jones [2002] UKHL 5, [2003] 1 AC 1 concerning trial on indictment. Lord Bingham observed at paragraph 13:

"... 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."

The decision also endorsed the checklist which had been identified by the Court of Appeal: see [2001] QB 862 at paragraph 22.

19. Cases involving trial in Magistrates' Courts have taken different courses. In Shirzadeh v Maidstone Magistrates' Court [2003] EWHC 2216, having cited Jones the court upheld the decision of the magistrates to proceed to trial, having recorded in their reasons:

"Every effort to locate Defendant. Aware of trial. Known for some time. Prosecution is present. Therefore proceed."

Following the same course as in this case, although the Defendant was then arrested the following day, the justices refused to reopen the matter. A challenge to that decision was also refused.

20. In that case, Jones was cited at length, although it was conceded by counsel for the Appellant there was some important differences between the position on indictment and summary trial. These were expressed by Crane J in these terms at paragraph 14:

"First, he submits, that there ought to be less risk from either a trained lay justice or a district judge in drawing an impermissible inference from a defendant's absence; secondly, in a magistrates' court the finder of fact may ask its own questions and test the evidence of prosecution witnesses; thirdly, a defendant in summary proceedings can apply to set aside any resulting conviction under section 142 of the Magistrates' Court Act 1980; and fourthly, a defendant in summary proceedings has an automatic right of appeal to the Crown Court. He accepts that one should expand the fourth suggestion by noting that an appeal to the Crown Court will result in a full rehearing."

21. On the other side of the line, in Drinkwater, to which I have already referred, a refusal to adjourn notwithstanding medical evidence, albeit limited to the effect that the Defendant was unwell which at least to some extent was accepted by the court, led to the decision to refuse to adjourn being quashed. Beatson J, as he then was, observed that none of the authorities to which the attention of the court was drawn (and it is to be noted that its attention was not addressed to section 11 of the Magistrates' Courts Act as amended) distinguished between magistrates and Crown Courts. He observed that the possibility of a full rehearing in the Crown Court cut both ways because one of the reasons argued for not adjourning was that a civilian witness might not return.
22. Since the amendment to the legislation, there is in reality a very real difference between the Magistrates' Court and the Crown Court. Thus the provisions of section 11 of the Act, in particular the fact that it was specifically amended to provide that proceeding in the absence of a Defendant was the default position where the Defendant was proved to be aware of a date of trial and in respect of whom no good reason for absence was shown. Clearly the interests of justice must prevail, but that is far from saying that the reversal of that default position does not have a material effect on the exercise of judicial discretion.
23. In my judgment, the justices were entitled to rely on the legislative framework to conclude that there was no good reason to adjourn and that to adjourn not only would have failed to give weight to the provisions of section 11, but also failed to have proper regard to the overriding objective identified in the Criminal Procedure Rules. I would, therefore, answer the first question posed in the affirmative.
24. The remaining questions fall then to be addressed. We underline it was not incumbent on the defence solicitor to withdraw. Indeed, the authorities make it clear it is a matter for the solicitor. Bearing in mind that he could deploy many of the arguments in the absence of his client, particularly in relation to character both of the Appellant and his father, it is unfortunate he chose to take the course he did. To that extent, the Appellant cannot complain that the arguments which might otherwise have been available were not in fact deployed.
25. Developing the skeleton argument which he submitted in advance, Mr Ian Whitehurst has attractively argued that given the earlier ruling that both the hearsay statement of the complainant and his bad character could be adduced, the prosecution should have ensured that all evidence deemed admissible was presented to the court. He submitted that there was a burden placed on the Crown to ensure that all such evidence ruled admissible in preliminary proceedings was available to the court when a Defendant was not present or not represented.
26. He accepts this approach is not identified either in the case or his skeleton, but he argues in the alternative that where the Crown have not satisfied that burden, there should be a burden on the court, given its knowledge of these particular features of the case, and the court should have inquired as to the nature of the evidence ruled admissible. The effect, therefore, was that only half of the product of the ruling was brought to the attention of the judge.
27. Mr Weaver for the Crown argues that it was no part of the duty of the Crown to admit or adduce the evidence. The ruling permitted the defence to adduce the material relating to the complainant, which is not the same as saying that it was in fact and inevitably to be part of the trial. It was for the defence to adduce such material as it wished to present to the court. By absenting himself, the Appellant may have deprived himself of the right to do so. By his solicitor leaving, he was similarly deprived of that ability.
28. In my judgment, to place an obligation on the Crown to adduce evidence which otherwise it would have had no obligation to present simply because the Defendant and his legal representative have chosen not to attend is to place an inapproproate burden and responsibility upon them.
29. Similarly in relation to the court: its responsibility is to decide cases according to the evidence adduced before it. It was open to the magistrates to question the witnesses as they came to give evidence, but it was no part of their responsibility to advance a positive case. The Appellant might have been asserted by his solicitor to be of good character, but the detail of his character was certainly not within the knowledge of the court and would not otherwise have been deployed by the prosecution in the absence of defence questions.
30. In my judgment, therefore, there was no such obligation either on the Crown or the court and I would answer both the second and the fourth questions in the negative.
31. That leaves only the question of self defence. In our judgment, as is made clear in the case although not formally part of the evidence in the case, it was material within the Appellant's interview and it is abundantly clear that the magistrates addressed it by reference to the facts. I would answer that question also in the affirmative.
32. In those circumstances, the appeal by way of case stated in relation to the decision at the trial should, in my judgment, be dismissed.
33. I turn to the second appeal by way of case stated which concerns the refusal by the magistrates to reopen the case against the accused following his conviction. The facts which form the basis of the question of whether the discretion to refuse to reopen the case was exercised reasonably are contained in the case:

"The reason for the Defendant's non-attendance was his error in failing to remember the correct date. He was present when the trial date was fixed. Witnesses called at the trial hearing will have to be reheard if the case is reopened. The offence goes back to April 2014. There will be a significant delay if a new trial is fixed for all day and the impact this will have on the ability for witnesses on both sides to accurately and reliably to recall what occurred. We have considered the prejudice to the prosecution if the case is reopened. We have considered the prejudice to the defence, as they were unable to put forward admissible evidence at trial. In all the circumstances, we are not satisfied it would be in the interests of justice for the case be reopened and, therefore, the conviction will stand."

34. It is important to revert to the power identified in section 142, which is described in the heading to the provision as "Power to rectify mistakes, et cetera". Section 142 permits the magistrates to reopen proceedings where "it subsequently appears to the court it would be in the interests of justice that the case should be heard again".
35. In Regina v Croydon Youth Court, ex parte DPP [1997] 2 CrAppR 411, the Divisional Court considered the refusal of the Youth Court to allow a Defendant to reopen proceedings in order to set aside his earlier plea of guilty. In relation to the statutory power of the court, McCowan LJ said at page 416:

"In my judgment the purpose of section 142(2) is accurately described in the heading as a "Power to rectify mistakes". It is generally and correctly regarded as a slip rule. Miss Markus places great reliance on the fact that those words in the heading are followed by "etc". But in my judgment that cannot extend the power given beyond a situation akin to mistake."

36. As Mr Weaver submits, that analysis has been followed in subsequent cases: see, for example, R (on the application of Williamson) v City of Westminster Magistrates' Court [2012] 2 Cr App R 24 at paragraph 31 and DPP v Chajed [2013] 2 Cr App R 6 at paragraph 22 underlining the purpose and scope of the provisions in that section are very limited.
37. Mr Whitehurst recognises that his reliance upon section 142 runs counter to this line of authorities. He seeks, again attractively, to argue that his submission relating to the errors made by the magistrates in the first hearing are sufficient to carry forward into this decision as well. If the magistrates had been in error in relation to the first case, that appeal would have succeeded and this appeal would not have been necessary. As it has not succeeded, the section 142 case takes the matter no further.
38. I would also dismiss this appeal.
39. I leave this case only with the observation that it is indeed unfortunate that the Appellant chose to elect to proceed by way of case stated rather than appeal to the Crown Court which would have permitted a full rehearing of this allegation.
40. Mr Whitehurst submitted that it was wrong to rely overly upon the right of appeal on the basis that the Defendant was entitled to what might be colloquially described as two bites of the cherry, a first hearing before the magistrates and a then a rehearing on appeal.
41. The difficulty with that argument is that by applying for cases to be stated, he removed the right of any appeal to the Crown Court against his conviction. That, of course, was his decision. He must, therefore, bear responsibility for it.
42. In my judgment, both these appeals should be dismissed.
43. MR JUSTICE HOLROYDE: I agree with all that my Lord has said as to the reasons why the Appellant must fail. I respectfully agree with my Lord as to the answers to be given to each of the stated questions. I would add only two points.
44. First, I would wish to emphasise the importance of the provisions contained in section 11 of the Magistrates' Courts Act 1980 where an adult defendant fails to attend his trial in a Magistrates' Court and no acceptable reason for his absence is put before the court.
45. Secondly, I would respectfully echo my Lord's observations as to the limited scope of section 142 of the Magistrates' Courts Act 1980. In his submissions on that point, Mr Whitehurst was perhaps suggesting that a criticised decision of magistrates, which was not in itself sufficient to found a successful application to this court, could and should nonetheless qualify as a mistake sufficient under section 142 to enable the unsuccessful Applicant to have his case reopened. Grateful though I am to Mr Whitehurst for his argument on the point, I am unable to accept it.
46. MR JUSTICE HOLROYDE: Thank you.
47. SIR BRIAN LEVESON: Thank you both very much.