Shirzadeh v Maidstone Magistrates' Court

1. MR JUSTICE CRANE: The claimant applies for judicial review seeking to quash two decisions of the Maidstone Magistrates' Court. The first decision was made on 5th February 2003 to hear a charge of indecent assault in the claimant's absence. The second decision on 14th February was a refusal to direct a rehearing.

2. The claimant is a 19-year-old Afghani national of previous good character. He speaks little English. He required an interpreter, we are told, during the course of the criminal proceedings, although his solicitors communicated with him in English, so he must have some knowledge of English. He and a co-defendant were charged with an indecent assault on a 14-year-old girl, an offence alleged to have been committed on 9th February 2002.

3. The case against the claimant was that he and the co-defendant followed a girl around the town centre, and that in due course the co-accused kissed the girl twice against her will. The case for the prosecution was that the claimant participated in the offence as part of a joint enterprise. He was arrested on 9th February 2002. It is clear that the claimant raised in his second interview the question of whether he was simply naive and how much he knew about what was going on.

4. The case had a considerable listing history. It eventually reached court on 13th August 2002 and was adjourned on 13th August, 27th August and 10th September. On 17th September the magistrates determined mode of trial. Both defendants at that stage elected summary trial and pleaded not guilty. There were postponements of the trial date. Eventually, on 16th January 2003, there was a pretrial review. The trial date was confirmed. The claimant's solicitor was present on that occasion. A letter from the court confirmed the trial date of 5th February to the solicitor. On 29th January 2003 a notice was sent to the claimant in English, giving the trial date as 5th February 2003. There was also a letter from his solicitors to the claimant, dated also 29th January 2003, confirming the trial date, to which I shall return. On 3rd February 2003 the codefendant, who had been released prior to 29th January, in fact pleaded guilty.

5. It is right to say that the claimant had no responsibility for any of the delays in the case. When the trial arrived on 5th February, the claimant was not present. It appears that there were efforts to locate the claimant; the police attended his home address but he was not there. There were five prosecution witnesses present: the claimant and four of her friends, who had seen part of the events. There was a videorecording of the complainant's evidence but not of the others. In those circumstances the justices considered whether the trial should take place in the claimant's absence. Their reasons are recorded in the following terms:

"Every effort to locate Defendant; aware of trial, known for some time; prosecution witnesses present, therefore proceed."

Counsel for the claimant in fact withdrew. A trial took place. The witnesses were heard and the justices convicted, giving reasons for their conviction as follows:

"1. He helped Safi Husayni by his physical presence, keeping close to her and preventing Lydia from getting away from his friend. This caused Lydia to be very frightened.

2. He was present when both assaults took place and must have been aware of what his friend was doing certainly after the first assault had taken place. We do not place any reliance on the lies given in evidence in the interview."

A warrant was issued for the claimant's arrest. He was arrested on the following day, 6th February. He was granted bail again and the matter was adjourned until 14th February.

6. On 14th February the justices refused to re-open the matter. Their reasons are recorded as follows:

"Notice of the trial was sent to you giving the date of the trial at your correct address and was not returned to the court. Other notices and letters were sent in English and were understood by you. You had the opportunity to attend court. An offence had been committed against a 13 year old girl in a public place and she would have been traumatised by the event. The magistrates made a decision at the time to hear the case on the consideration of the facts available to them. We do not find it in the interests of Justice to re-open the case."

7. The solicitor for the claimant had submitted to the justices that the claimant had been confused about whether he needed to attend court in the light of being told that the case against him might not proceed because the co-defendant had accepted his guilt. We have, in fact, a copy of the letter that had been sent by the solicitors. It is not clear whether that was actually before the justices, although, in effect, in the light of the solicitor's statement, the sending of the letter was canvassed with them. In that letter I note that although there was discussion about whether the prosecution would continue with the case, the letter continues:

"... otherwise all parties confirmed at the PTR that no problems are anticipated concerning your trial and it will go ahead as scheduled. If you are unclear about anything please do not hesitate to contact my colleague... "

The dates of the hearing, which was listed for three days from 5th February, were set out.

8. It is to be noted also that on 14th February the claimant pleaded guilty to a bail offence, namely failure to attend without reasonable excuse. The solicitors had advised him that he should plead guilty, it is said. The solicitors maintained that he was confused, but nevertheless he pleaded guilty, it seems, on the basis that he accepted responsibility for his absence and had no reasonable excuse in the circumstances for that absence.

9. In due course on 25th March he was sentenced to a conditional discharge for two years and ordered to pay the costs of the prosecution in the sum of £50. The result of the conviction had been that he was placed on the Sex Offenders Register.

10. The law on adjournments in these circumstances and trials in a defendant's absence is to be found principally in the case of R v Hayward and Others [2001] QB 862 in the Court of Appeal. The court consisted of Rose LJ, Hooper J and Goldring J. There were three cases before the court. It is to be noted that they were all cases of trials on indictment. At paragraph 22 the court gave detailed guidance on the factors to be taken into account in deciding whether a trial should proceed in the absence of a defendant.

"22. In our judgment, in the light of the submissions which we have heard and the English and European authorities to which we have referred, the principles which should guide the English courts in relation to the trial of a defendant in his absence are these:

1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;

(viii) the seriousness of the offence, which affects defendant, victim and public;

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case."

11. The case went to the House of Lords, where it is reported at [2002] 2 WLR at page 524. Lord Bingham referred to the principles and then to the judgment of the Court of Appeal. At paragraph 13 he indicated that he would dismiss the relevant appeal. He said further in paragraph 13:

"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 was represented and asks that the trial should begin. The Court of Appeal's check-list of matters relevant to the exercise of the discretion (see paragraph 22.5) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide."

He then added two observations. First, he did not think that the seriousness of the offence was a matter relevant to the exercise of the discretion and secondly, at paragraph 15, he expressed the view that it was generally desirable that a defendant be represented even if he had voluntarily absconded. Plainly that is an important factor.

12. Before the case reached the House of Lords a case had been heard in the Divisional Court R (On the Application of Whitehead) v Horseferry Magistrates' Court (6th June 2001) [2001] EWHC Admin 492. The Divisional Court consisted of Pill LJ and Silber J, and Silber J gave the first judgment. In paragraph 11 he referred to the decision of the District Judge in that case not to adjourn the trial, and then referred to the principles set out in the Hayward case. At paragraph 13 he said:

"I pause there to say that there are a number of other factors set out which do not appear to be relevant to the present case. Of course in that case, the Court of Appeal was dealing with jury trials, but the principles that have been set out there do have some significance in this case."

At paragraph 16 he said:

"To my mind it must be made very clear that there is not any form of rule or any form of presumption that if a defendant is not present then the trial against him cannot proceed. But in this case there are special circumstances which I have just mentioned and which make it an exceptional case, particularly bearing in mind the fact that a new charge was being put, and the evidence on which reliance was placed at the hearing was different from what had been envisaged."

13. I note, however, that although the language there implied perhaps that an adjournment should only be granted in an exceptional case, the tenor of the judgment of the Court of Appeal in Hayward is that trial in a defendant's absence should be the exception rather than the rule.

14. It is conceded by counsel for the claimant that there are additional factors which are relevant in a magistrates' court. He helpfully sets those out in his skeleton argument. They are four. 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.

15. The statutory provisions which govern the Magistrates' Court, so far as relevant, are these. In the Magistrates' Courts Act 1980 section 11(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, the court may proceed in his absence."

In section 142, to which I have already made reference, the Magistrates' Court has power under subsection (2):

"Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct."

There are thus two questions that we need to consider, namely the two decisions made by the magistrates.

16. It is highly relevant for both purposes to consider whether the claimant deliberately absented himself. If a defendant does not attend there may of course be very cogent evidence of deliberate non-attendance. But very often the court has to draw inferences from the information available: the listing history; information about the notice given to the defendant; any efforts to locate the defendant and other matters. Here the justices plainly considered before they proceeded with the trial whether the claimant was aware of the trial, and I would interpret their reasons as concluding that they regarded his non-attendance as deliberate. It is perfectly true that their reasons, briefly expressed, did not refer to most of the matters in the Hayward check-list. Mr Hall, on behalf of the claimant, complains about that and invites us to take the view that the magistrates gave inadequate consideration to the proper exercise of their decision in the circumstances. He points, in particular, to the difficulty that the defendant's case would inevitably suffer if he was not there (to put it colloquially) to give his side of it. But I would take the view that that must have been very obvious to the justices. It is perhaps unfortunate that counsel for the claimant withdrew, but on the authorities that is ultimately a matter for the counsel or solicitor concerned.

17. Bearing in mind the finding that the absence was deliberate, which in my view cannot be seriously criticised, and the nature of the case, which involved the attendance of five young witnesses, I would conclude that the magistrates were acting well within the discretion that they had.

18. In my view it is unrealistic to expect that magistrates' reasons to be as full as those of a legally qualified court. In my view one has to look to see whether in the reasons expressed there are errors that are clear. The absence of expression of certain reasons is less significant and, ultimately, the question is whether, in the circumstances, they were entitled to act as they did. In my view they were.

19. The situation when the decision had to be taken on the 14th February was a different decision. As before, the court had a discretion, a discretion to be exercised fairly. In my view, the same factors were, in principle, relevant on the second occasion as on the first, including the additional factors that I would accept Mr Hall correctly advances. There is, however, the additional factor that the trial has already taken place. Once it has taken place, there will have to be, if there is a new trial, witnesses coming again. Once more, I would interpret the reasons given by the justices as confirming a finding (having heard such explanation as was given through the claimant's solicitor) that on the previous occasion the absence had been deliberate. Although they did not specifically refer to it, in my view they were perfectly entitled in principle, as Mr Hall concedes, to bear in mind that a rehearing was, as a right, available in the Crown Court. That is part of the picture in the Magistrates' Court.

20. The decision to be reached on 14th February was a more difficult decision than the one on the first occasion. Nevertheless, they were plainly referred on that occasion, as the legal adviser's notes confirm, to the passage in Stone's Justice Manual which sets out the various Hayward criteria. The fact that those are not then transferred into the reasons as expressed, does not seem to me particularly significant. The magistrates can reasonably have been expected to have listened to what was said and to have taken those matters into consideration.

21. In my view, the decision on 14th February was within the discretion of the justices, just as their decision on 5th February had been within the somewhat different discretion that they had to exercise there.

22. For my part, therefore, I would dismiss the application to quash either of these decisions.

23. MR JUSTICE HOOPER: I agree. Any other orders sought?

24. MR HALL: No, my Lord.

25. MR JUSTICE HOOPER: Thank you very much.