CO/434/2007 
Neutral Citation Number: [2007] EWHC 2766 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 31 October 2007
 
B e f o r e:

LORD JUSTICE KEENE 

MR JUSTICE GIBBS 
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Between: 
DONOVAN MORSBY 
Claimant

v 

TOWER BRIDGE MAGISTRATES' COURT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss Emma Goodall (instructed by Murrays Partnership) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
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J U D G M E N T
1.	MR JUSTICE GIBBS:  The claimant, Donovan Morsby, applies for judicial review of a decision by District Judge Somjee sitting at the Tower Bridge Magistrates' Court on 7 November 2006, refusing to exercise his power under section 142(1) of the Magistrates' Courts Act 1980 to rescind the claimant's conviction in his absence at that court on 26 October 2006.  
2.	The conviction was for obstructing a police officer in the exercise of his duty.  The basis of the challenge is that, given the circumstances that led to the claimant's absence, the District Judge could not lawfully have concluded that proceeding on 26 October was in the interests of justice.  
3.	A brief chronology of events leading up to the two hearings at the Tower Bridge Magistrates' Court, helpfully provided by Miss Goodall, counsel for the claimant, is as follows.  On 30 July 2006, the claimant was arrested and charged with an offence of obstructing a police officer in the execution of his duty contrary to section 89(1) of the Police Act 1996.  On the following day the claimant appeared at the Camberwell Magistrates' Court.  He pleaded not guilty to that offence and was bailed to attend for trial at the Tower Bridge Magistrates' Court.  Legal aid was refused.  
4.	On 27 September 2006, the claimant was remanded in custody by the Camberwell Magistrates' Court in respect of separate proceedings.  The charges that he faced on that occasion were more serious and legal aid was granted.  On 26 October 2006, on the date ultimately fixed for trial of the obstruction charge, the claimant did not appear.  He had been remanded in custody and was not produced from custody.  He had no legal representation.  District Judge Somjee proceeded in his absence and found the charge proved.  A warrant was issued for the claimant's arrest.  Subsequently it was discovered that he was in custody.  
5.	On 7 November 2006, he was produced and represented by a duty solicitor who was allocated to him, a Miss Rachel Rushby.  She applied to the District Judge to re‑open the conviction, but that application was refused.  The claimant was sentenced to seven days' imprisonment on the charge.  Ultimately, that was directed to run consecutively to a much more substantial sentence that he received for other charges.  
6.	At the application to rescind the conviction, Miss Rushby made a number of submissions on behalf of the claimant.  In refusing the application, the District Judge is recorded as saying this: 
"The Defendant was in custody at the time [of his trial].  There is an application to re‑open and for re‑hearing.  The defendant says he said to his solicitors at the Crown Court ... and the solicitor said he would sort it out.  The solicitor has no recollection of this.  The defendant did not speak to the court or gaolers ... He could have obtained the court's address through the solicitors or gaolers.  He has been in custody since September.  He pleaded not guilty.  I am satisfied that the fault lies with him, the application to re‑open is refused." 
7.	The reasons cited do not form any official record of the judgment.  Miss Goodall tells the court that efforts were made on the claimant's behalf to obtain confirmation that the reasons for refusal were correct and/or an official court record of the reasons, but unfortunately no response was received from the defendants.  We proceed on the basis that the record is broadly accurate, since we have no reason to think the contrary.  
8.	At the hearing before the District Judge, Miss Rushby clearly did her best to take down the record.  As duty solicitor on the day in question, Miss Rushby endeavoured to find out from both the court, the claimant's solicitors and the claimant himself what had happened in connection with his non‑appearance at court.  She found out from the claimant that he had always intended to contest the charge.  She found out from the court that the 26 October was itself an adjourned date of listing for trial, the first having been ineffective due to a prosecution witness's non‑attendance.  It became clear to her that the claimant had had at least two firms of solicitors acting for him.  He told her that he informed one of them about the proceedings for obstructing a police officer.  That solicitor, according to the claimant, said that the case "could not go ahead whilst he was in custody".  She went on as follows in her account of what happened: 
"From my recollection of the hearing the case was put back for me to contact the other solicitor and find out if they could confirm that the claimant had told them about these proceedings and to ascertain if the claimant had made any attempt to contact the court himself.  I don't think the claimant knew who his solicitors were and I recall speaking to Inner London Crown Court to ascertain who had Legal Aid.  It was confirmed that Messrs Amer Sergeant were instructed and I eventually managed to speak to one of the partners there who read the file but there was no mention of the Tower Bridge case on their attendance notes.  
The claimant had not been visited in prison by Messrs Amer Sergeant, the only contact he had had with them had been at court.  I took the view that the solicitor at court would not necessarily have recorded it in his attendance note if the claimant had informed him of the case at Tower Bridge Magistrates' Court.  I was further of the opinion that the solicitor would not have been under any obligation to inform Tower Bridge Magistrates' Court that the claimant was in custody as he was not legally aided in relation to the proceedings at Tower Bridge.  It would also have been reasonable to assume that Tower Bridge Magistrates' Court would have obtained a production order for the trial in any event as the claimant was remanded in custody by Camberwell Green Magistrates' Court.  Both courts are within the Lambeth and Southwark Local Justices' Area and share the same administrative offices.  
On taking further instructions from the claimant I discovered that he had been remanded in custody immediately after his arrest and did not have any of the paperwork regarding the Tower Bridge case.  He could not remember the trial date and he told me that he would not have known how to contact the court and to inform them of the situation.  He had not received any 'canteen' for three weeks and therefore had no stamps." 
9.	Miss Rushby made her submissions to the District Judge, on the basis of the information she had found, in support of her re‑opening the case.  She submitted that the claimant had not voluntarily absented himself.  She repeated the claimant's instructions about what he had told his previous solicitor.  She submitted that his solicitor would probably have been aware via the court or the prosecution at a previous hearing that the claimant faced the present proceedings, whether the claimant had told them or not, and that in practice it was unrealistic to expect the claimant himself to make contact with the court or to secure his own production at court whilst in custody.
10.	The applicable law may be very briefly stated.  The Magistrates' Courts Act 1980, section 142(1), provides as follows:
"A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.
11.	Authoritative guidance was given as to the principles to be applied in such cases by the Court of Appeal in R v Hayward, R v Jones and R v Purvis [2001] 3 WLR 125, the case generally referred to as R v Hayward.  The case was subsequently reconsidered by the House of Lords in the name R v Jones (Anthony) [2002] 2 WLR 524.  In the Court of Appeal at paragraph 22 of the judgment of the court, Rose LJ gave guidance about the principles applicable to proceeding in a defendant's absence.  These affirmed the defendant's general right to be present at trial, but said that there may be an express or implied waiver of the right.  The matter of proceeding in a defendant's absence was one of discretion for the trial judge.  Rose LJ said: 
"That discretion must be exercised with great care and it is only in rare and exceptional circumstances that it should be exercised in favour of the trial taking place ... particularly if the defendant is unrepresented." 
12.	Factors, among others, mentioned by Rose LJ which a judge should take into consideration were: whether the defendant's behaviour was deliberate, voluntary and such as plainly waived his right to appeal; the seriousness of the offence; the interests of the public, victims and witnesses that there should be a prompt trial; the effect of delay on the memory of witnesses, and the disadvantage to a defendant in not being able to give evidence.  Lord Bingham of Cornhill in his speech in the House of Lords stressed that the discretion to commence a trial in a defendant's absence should be exercised "with the utmost care and caution" (paragraph 13 at page 538).  He described paragraph 22 of Rose LJ's judgment, the checklist of factors to be considered, as "an invaluable guide", save that he did not think that the seriousness of the offence was a matter relevant to the exercise of discretion.  He considered that the object of a fair trial and a just outcome were equally important whether the charge was serious or relatively minor.  In their speeches, Lord Hoffmann and Lord Rodger of Earlsferry, whilst concurring in the result, did not consider it necessary for a defendant to have waived his right to attend trial in order to justify proceeding in his absence.  The question was, according to Lord Hoffmann, whether in all the circumstances the defendant got a fair trial.  
13.	There is, in my judgment, no reason to suppose that the principle set out in the cases referred to should not apply with equal rigour to proceedings in the Magistrates' Court: see for example R(R, a juvenile) v Thames Youth Court [2002] 166 JP 613; [2002] EWHC Admin 1670.  
14.	Having read Miss Goodall's submissions on behalf of the claimant, and her brief oral submissions, I am persuaded that these principles were not observed in the present case.  It might of course have been possible on the facts as presented to the District Judge that the claimant (a) was aware of the date of his impending trial, and (b) in a position, although in prison, to communicate with the court to secure a production order to bring him before the magistrates, or indeed an adjournment.  Further, no significant criticism could be made of the District Judge personally for proceeding in the defendant's absence on the earlier occasion, albeit that one might have hoped that since the Magistrates' Court at which the defendant had first appeared on the charge was the same one at which he had been committed to custody, the information that he was in custody would have been brought to the judge's attention.  
15.	However, when on 7 November 2006 the judge came to make the challenged decision, it seems to me that he placed substantially too much weight on the defendant's failure to communicate with the court from prison.  He could not reasonably have been sure that the claimant knew the date fixed for his trial.  The explanation given by the claimant for not communicating with the court could not, on the basis of Miss Rushby's evidence, be excluded.  The charge of which the claimant was convicted was not a serious one, but he did receive seven days' in prison for it, in addition to the substantial sentence he received for the other offences.  As Lord Bingham said in Jones (Anthony), the standard of justice should not be lower because of the relative lack of seriousness of the charge.  
16.	In my judgment, the interests of justice here clearly require the rescission of the order previously made convicting the claimant of the offence, and a retrial in his presence.  For all those reasons, I am of the view that the claim should succeed and the conviction should be quashed.  
17.	LORD JUSTICE KEENE:  I agree.  If there was some fault on the part of a defendant which led to his absence at trial, that may often be relevant to the court's decision under section 142(2), but it is not determinative, as the District Judge here appears to have treated it.  The test under that sub‑section is whether a re‑hearing is in the interests of justice.  It will normally be in the interests of justice for a defendant to be able to defend himself, and unless the evidence indicates that his absence from trial is deliberate and voluntary, a re‑hearing would normally be the appropriate course.  
18.	We will therefore direct a re‑hearing, having quashed the decision referred to in this application for judicial review.  That means that the conviction and sentence are of no effect under section 142(3).  Whether the Crown Prosecution Service decide to proceed with the re‑hearing, of course, in the circumstances of this case is another matter.
19.	MISS GOODALL:  I am very grateful.
20.	LORD JUSTICE KEENE:  Thank you very much.  
21.	MISS GOODALL:  My Lord, I am legally aided.  I do not know whether I need to make any formal application in respect of costs, namely legal aid taxation.  
22.	LORD JUSTICE KEENE:  It is not being opposed.  Are you seeking an order for costs against some party, or simply do you want an assessment of your own legal aid costs?  
23.	MISS GOODALL:  I do not seek an order for costs against absence parties, but a taxation ‑‑ 
24.	LORD JUSTICE KEENE:  Insofar as you need any assessment for costs for the purpose of legal aid, you may have an order to that effect.
25.	MISS GOODALL:  I am grateful my Lord.