Olechowski, R. v

LORD JUSTICE SCOTT BAKER: On 3rd March 2009 in the Crown Court at Blackfriars before Judge Martineau, this applicant was convicted (in his absence) of two counts of burglary and sentenced to 18 months' imprisonment on each concurrent. His application for an extension of time and leave to appeal against conviction has been referred to the Full Court by the Registrar. The case is unusual and the application is not opposed by the Crown.

The circumstances, briefly, are these. The appellant did not answer his bail at his trial and the trial proceeded in his absence. A bench warrant was issued and he was apprehended two days later when he reported to the Crown Court. His counsel told the judge that he had not purposely failed to attend.

The circumstances of his non attendance can be summarised as follows. He is a Polish national, who speaks and understands very little English. Arrangements had been made by his solicitor to communicate with his sister, whose English is very good, so that she could let him know when he would be required to attend court for his trial. Unfortunately, his sister between the plea and case management hearing and the trial had moved her address without informing the appellant's instructing solicitors. When his solicitors were informed of the date of the trial, they wrote to his sister at her old address, for her to pass on the information to the appellant. The letter never reached her because she moved. Further, the solicitors also attempted to contact her by telephone, but due to an error they had written down the wrong telephone number, on which they hoped to be able to contact her. It was in these circumstances that the appellant was unaware when his trial was due to begin.

When the judge was told these facts he purported to overturn the conviction and order a new trial. He had no jurisdiction to do so. On 23rd April 2009 he decided that it was correct that he had no jurisdiction and at that point purported to give exceptional leave to appeal. It seems to us, on the face of it, that he had no power to do that either. So the matter comes before us having been referred by the Registrar, the appellant was tried in his absence. In circumstances in which the judge, having heard the facts, decided that the only fair course would be that he should be retried. In these circumstances, it seems to us that the only proper course, and it is one which is not opposed by the Crown, is that he should be granted leave to appeal out of time, that the appeal should be allowed and that a fresh trial should be ordered.

In these circumstances there are further directions and the court clerk will give me the appropriate document to deal with those and there may be an issue about bail.

We allow the appeal. We quash the conviction. We direct that he be retried on both counts in the indictment. We direct that a fresh indictment be preferred and that he be re-arraigned on the fresh indictment within 2 months. He has been on bail until the present time, I understand, although it is not quite clear under what authority. You are, I imagine, to ask for bail again?

MR REDHEAD: My Lord, yes.

LORD JUSTICE SCOTT BAKER: Without any conditions?

MR REDHEAD: Perhaps your Lordship would want to impose conditions.

LORD JUSTICE SCOTT BAKER: There is somebody sitting at the back of the court who might be ready to give you some instructions.

MR REDHEAD: That is the sister.

LORD JUSTICE SCOTT BAKER: I do not know what the Crown's position is about bail.

MR REDHEAD: I would ask for unconditional bail in these circumstances.

LORD JUSTICE SCOTT BAKER: What does the Crown say?

MISS WINTER: I would ask there is a condition of residence imposed given the circumstances and difficulties getting to court on the last occasion.

LORD JUSTICE SCOTT BAKER: With his sister? What is the position? He has been on unconditional bail so far, has he?

MISS WINTER: He had been on unconditional bail.

LORD JUSTICE SCOTT BAKER: His sister wants to tell us something.

MR REDHEAD: Reporting every Monday morning to the police station.

LORD JUSTICE SCOTT BAKER: Where is he living?

MR REDHEAD: 42A Victoria Drive, Southfields.

LORD JUSTICE SCOTT BAKER: Whose house is that?

MR REDHEAD: It is a flat.

LORD JUSTICE SCOTT BAKER: Is that where the sister lives?

MR REDHEAD: No.

LORD JUSTICE SCOTT BAKER: You are asking for a condition of residence that he continues to reside there?

MISS WINTER: Yes.

MR REDHEAD: 42A Victoria Drive, SW19 6EG.

LORD JUSTICE SCOTT BAKER: We make a condition of residence that he lives there. There is no need, I think, for any reporting restrictions.