Hayes, R (on the application of) v Chelmsford Crown Court

MR JUSTICE HENRIQUES: This is an appeal by way of case stated from a decision of HHJ Ball QC and justices, sitting in the Crown Court at Chelmsford on 9 May of last year, when they dismissed the appeal of one Sean Hayes. The circumstances of that dismissal are apparent from the question formulated for resolution, namely:

The following provisions are relevant: section 112 of the Magistrates' Courts Act 1980 provides:

The following authorities are relevant: firstly, R v Croydon, ex parte Clair [1986] 83 Cr App R, page 202, where it was held that:

Turning to the facts of this case, the appellant had been charged with offences of theft during December 1998 and January 1999. He was also charged with failing to surrender to bail on 4 June 1999. There were any number of hearings listed before the Magistrates' Court, beginning with the appellant being convicted in his absence on 2 August 2000. In October 2000 the conviction was set aside. In November 2000 a pre-trial review took place. On 20 December 2000 the case was listed before Epping Magistrates' Court for trial, but the defendant did not attend, due to ill health. A warrant without bail was issued. On 12 February 2001 there was an application to vacate the trial due to the defendant's illness. That succeeded and the defendant was granted unconditional bail. On 28 February 2001 a pre-trial review took place and the defendant did not attend but submitted a medical certificate for flu-type illness. On 13 March the defendant did attend. A trial date was fixed and the defendant was remanded on conditional bail. On 14 May 2001 the defendant attended for trial, but a police officer witness for the prosecution did not and the magistrates adjourned the trial, the defendant again being remanded on conditional bail. On 2 July 2001 the defendant attended, but the proposed trial was adjourned due to lack of court time.

Finally, on 21 August 2001 the defendant and all the prosecution witnesses attended simultaneously, a trial took place and the defendant was found guilty of six out of seven charges. His case was adjourned for sentence. On 19 December 2001 he was sentenced to six months' custody and released on bail pending appeal. Notice of appeal was thereafter given to Chelmsford Crown Court.

On 19 October 2001 the matter was listed before HHJ Pearson, and the Crown applied to adjourn for seven days to ascertain the appropriate dates for a full hearing. On 26 October, before the same judge, the appeal date was fixed for 29 November 2001. On 21 November 2001, before HHJ Hawkesworth, the defendant failed to attend, but his medical situation was explained to the court. The case was adjourned for medical evidence to be produced. On 3 December 2001, again before HHJ Hawkesworth, the defendant did not attend. HHJ Hawkesworth indicated 'appeal to proceed on next occasion with or without appellant present'. Such note of HHJ Hawkesworth's order comes from the appellant's solicitor. It is right to say that no identical note was obtained by those then appearing for the Crown. Suffice it to say that there is nothing inconsistent with the note obtained by the appellant's solicitor with the partially incomplete note obtained on behalf of the Crown. An order for costs was made against the appellant on 3 December.

The matter came back again on 20 December 2001 before HHJ Ball QC, when the prosecution applied to vacate due to witness availability. On 20 February 2002 the defence applied in writing to vacate and a new date was set, namely 9 May 2002. On 9 May 2002 the matter was again listed before HHJ Ball QC and the applicant did not attend. Upon appreciating the history of this matter and the fact that the applicant was absent, HHJ Ball addressed Miss Gardiner, saying this:

Having heard Miss Gardiner's comparatively brief observations, after a short consultation with the justices, HHJ Ball announced that the appeal was dismissed and, in due course, he made an award of costs against Mr Hayes in the total sum of £340, that sum including 9 May and other costs of 29 November.

Resisting those submissions, Mr Overbury, on behalf of the Director of Public Prosecutions, points to the fact that the applicant had been granted bail, a condition of his bail being that he attended at the Crown Court for the hearing of his appeal. He was, accordingly, unlike the appellants Clair, Brewer, and possibly Podmore (to which I will return), under a strict legal obligation to attend the appeal hearing at the Crown Court. There was no information from the applicant as to what medical condition he may have been suffering from, if any, justifying his absence from the Crown Court. Indeed, there was no explanation to the court of any kind to explain his absence, and the learned judge gave Miss Gardiner every opportunity to explain his absence, if there were any good reason known to her.

It was readily conceded by Mr Overbury that the Crown Court has a discretion to allow an appeal in the Crown Court to proceed in the appellant's absence when represented by counsel and where the appellant is under no strict legal obligation to be present in person. He submitted that, where a prospective appellant is, however, on bail and under a strict duty to attend at court, different circumstances prevail. He referred to the judgment of Croom-Johnson LJ in ex parte Clair. In that case there was no question of the appellant being on bail. He was under no strict duty to attend at court. The Lord Justice said this:

Accordingly, submits Mr Overbury, the position in the present case is very different: not only is the fact that he failed to attend on 9 May relevant, so too is the appellant's conduct throughout the whole of the history of these proceedings, which, of course, is why at the beginning of this judgment I set out at such length the considerable number of occasions when, initially, the justices and thereafter the Crown Court were frustrated at the number of indications when, principally by reason of the defendant's absence, they were unable to make any progress.

Mr Overbury submits that these are the relevant questions: firstly, was there an entitlement of the applicant not to be present at his appeal if he did not want to be? In answer to that question, Mr Overbury submits but one answer is possible: he was obliged to attend. The second question is: has there been a persistent failure on the part of the applicant to attend his appeal hearings? Again, the answer to that must be "yes". Thirdly, has there been a persistent failure on the part of the applicant to provide reasons for his non-attendance at appeal hearings? In relation to that, no medical evidence was produced on 29 November or 3 December or 1 March, and on 9 May no reason of any kind was given.

There follow two further questions in respect of which the answers are less clear than those earlier posed: fourthly, does a combination of persistent failure to attend and persistent failure to explain an absence amount to wilfully frustrating the course of the proceedings? In practical terms, the earlier proceedings were frustrated and the court did waste time. It must, of course, be borne in mind that the applicant had been sentenced to a term of imprisonment. He must have appreciated that the failure of his appeal would, almost certainly, result in his loss of liberty. I qualify the necessary conclusion because, of course, there was an appeal lodged against sentence, but, plainly, the applicant must have apprehended his loss of liberty which was, in itself, a potential reason for failing to attend. The possibility that HHJ Hawkesworth's observation had found its way to the applicant is also relevant: if it did so, he would have known that the court could hear his appeal in his absence.

The critical question posed in the submission of Mr Overbury is his fifth question: does a course of action which is intended to frustrate the course of proceedings amount to a de facto abandonment of the appeal process? He submits that the failure of the applicant to attend his appeal hearings, when under a strict obligation to do so, thereby frustrated the appeal process and was tantamount to withdrawing from the proceedings and was thus, in fact, an abandonment of his appeal.

I have not been able to accept that final submission of Mr Overbury. Rule 11(1) provides for a formal procedure for abandonment. It is true that the rule states that an appellant may abandon an appeal by giving notice in writing. It is plain from Bingham LJ's judgment, as he then was, in ex parte Brewer that, once the three day period immediately preceding the appeal has been reached, leave of the Crown Court is required in order for an appeal to be abandoned. It is plain to me that there has been no formal abandonment, or purported abandonment, of his appeal by the appellant. I am unable to accept that there are alternative regimes available: one for those who are on bail and obliged to attend the Crown Court; and a different regime available for those who are not obliged to attend the Crown Court for their appeals.

I indicated that I would return to the case of Podmore; there is no indication anywhere in the judgment in that case as to whether or not Mr Podmore had been granted bail pending appeal. Miss Gardiner points to the fact that he had been convicted of a dwelling house burglary, involving theft of a television, video recorder and £15 in cash. Whether or not the Stafford justices took the view that imprisonment was inevitable in a dwelling house burglary or not back in 1995, we will not know, certainly for the purposes of today's judgment. However, at no stage of the judgment did Hidden J indicate whether Mr Podmore was on bail or not.

Mr Overbury points to the fact that, plainly, he would not have been on bail because, had he been so on bail and required to attend, very different considerations would have been obvious to their lordships, particularly since Croom-Johnson LJ's observations were cited and, that being so, the court would necessarily have drawn a distinction, had it been appropriate to do so.

Having, though, concluded that separate regimes for those on bail and those not on bail do not appear to have been established, nor that they are appropriate, it must follow that the decisions in ex parte Clair, Brewer and Podmore ought all to be followed in the present case. It is easy to understand the frustration that the Crown Court must have felt by reason of the cynical way in which this applicant persistently failed to attend without apparent cause, save, of course, to either evade justice or avoid his incarceration. Nevertheless, the court had available to it a perfectly straightforward remedy: to hear the appeal in the absence of the applicant. Having reviewed the authorities and the appropriate sections of the Magistrates' Courts Act and the Supreme Court Act, it seems to me that in any subsequent case, whenever it appears to a Crown Court in its appellate capacity that an appellant obliged to attend has deliberately absented himself, the appropriate course is to hear the appeal in the absence of the appellant.

For those reasons, I answer the question in this way: it is not open to a Crown Court to conclude that the appellant is wilfully frustrating the course of the proceedings and to thereafter dismiss an appeal by reason of an appellant's repeated absence from the Crown Court. The appropriate course is to hear an appeal in the appellant's absence.

I am grateful to both counsel for the very helpful way they have presented this matter. Thank you.

Now there follow the orders which I must necessarily make. I make a quashing order, quashing the decision of the Crown Court sitting at Chelmsford, whereby firstly, the appeals were dismissed and, secondly, an award of costs was made against the applicant. The second order which I must make is to direct the Chelmsford Crown Court to hear the appeals. Are there any further matters arising?

MR OVERBURY: No, my Lord.

MISS GARDINER: No, my Lord.

MR JUSTICE HENRIQUES: Thank you.