QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
(President of the Queen's Bench Division)
MR JUSTICE HOLROYDE
|DIRECTOR OF PUBLIC PROSECUTIONS||Respondent|
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Mr B Weaver (instructed by CPS Appeals Unit) appeared on behalf of the Respondent
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"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."
"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."
"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."
"(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?"
"(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.
"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."
"... 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  QB 862 at paragraph 22.
"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.
"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."
"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."
"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."