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

Wednesday, 22 January 2003

1. 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:

"Where an Appellant has been granted bail by the Magistrates' Court to the hearing of any appeal in the Crown Court and persistently fails to appear for the appeal hearing providing no evidence for the cause of the failure is it open to the Court to conclude that the Appellant is wilfully frustrating the course of the proceedings and that his repeated failures amount to a de facto abandonment of the appeal?"

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

"(1) A party to any proceedings before a magistrates' court may be represented by counsel or solicitor. (2) ... an absent party so represented shall be deemed not to be absent."

Section 79(3) of the Supreme Court Act 1981 provides:

"The customary practice and procedure with respect to appeals to the Crown Court, and in particular any practice as to the extent to which an appeal is by way of rehearing of the case, shall continue to be observed."

Rule 11(1) of the Crown Court Rules 1982 provides:

"Without prejudice to the power of the Crown Court to give leave for an appeal to be abandoned, an appellant may abandon an appeal by giving notice in writing ... not less than the third day before the day fixed for hearing the appeal."

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

" ... under section 79(3) of the Supreme Court Act 1981, reinforced by section 122 of the Magistrates' Courts Act 1980, as the applicant was represented by counsel he was deemed to be present in court; thus, the Crown Court were in error in refusing to hear his appeal. It followed that there was no effective abandonment by the applicant's counsel purporting to withdraw his appeal, and there was nothing to prevent his appeal being heard, for it would be wholly unjust if his fellow appellants' appeal had succeeded while he was left with a conviction against his name which ought not to have been recorded at all."

Secondly, in R v Crown Court at Guildford, ex parte Brewer [1988] 87 Cr App R it was held:

" ... that an appeal to the Crown Court was by way of re-hearing. The Court was therefore able to form a judgment on the facts as outlined by the prosecution in deciding whether the sentence was excessive or correct, even in the absence of the applicant. Thus, the Crown Court had not acted unlawfully or in breach of natural justice - B's counsel had been asked to apply for leave to abandon. Leave could have been granted if he had done so. He did not. The appeal, therefore, remained alive to be considered by the Crown Court."

The third authority to which I have been referred is Podmore v Director of Public Prosecutions, CO-3429-95, 2 July 1995 in which it was held:

"(1) if an appellant is represented by a legal representative he is deemed to be present; (2) any application to hear the appeal in his absence is thus unnecessary and merely a courtesy to the Court; (3) in the absence of any application to abandon the appeal the Crown Court should proceed to hear the evidence; (4) the Crown Court has no power to dismiss the appeal without hearing the evidence. It was quite clear that the Crown Court faced with a situation where an appellant does not appear in person but appears by counsel has no right to treat the situation as if the appellant was not before the court at all and cannot dismiss the appeal peremptorily without hearing evidence and adjudicating upon it."

Those three authorities are, of course, all Divisional Court authorities.

4. 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.

5. 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.

6. 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.

7. 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:

"Can you place any argument before us as to why we should not dismiss his appeal today for want of prosecution?"

It is not surprising that Miss Gardiner did not readily have to hand the several authorities cited before me today. She did point out that Mr Hayes had always maintained his innocence; that the evidence against him was quite sketchy; and there was no reason, so far as she knew, why Mr Hayes was not there. He was, however, adamant that he was not guilty and he wished to be represented on appeal. Nothing that Miss Gardiner said could possibly have been construed as either an application to abandon the appeal or, in any way, a concurrence in a proposal to dismiss the appeal without the hearing of any evidence.

8. 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.

Miss Gardiner submits that, by reason of section 79(3) of the Supreme Court Act 1981, reinforced by section 122 of the Magistrates' Courts Act 1980, an appellant represented by counsel on appeal against conviction is deemed to be present. Relying on the authority of ex parte Clair , she submits that any application made to hear the appeal in the absence of the appellant is unnecessary and merely a courtesy to the court. She submits that the Crown Court had no power to dismiss the appeal without the hearing of evidence and, accordingly, that the Crown Court acted in excess of its jurisdiction by treating the appellant's failure to attend as an abandonment of his appeal. Relying on the authority of ex parte Brewer , she submitted that, where an appellant fails to attend or give instructions, it is right for the Crown Court to proceed to hear the appeal in the absence of the appellant but in the presence of his counsel. She relied upon the fact that the appellant did not give notice in writing to the court to abandon the appeal, in accordance with rule 11 of the Crown Court Rules 1982. It would also have been open to her likewise to submit that, within the three days immediately preceding the appeal, he had not sought leave to abandon his appeal. Accordingly, it is submitted that the Crown Court acted in excess of its jurisdiction by treating the failure of the appellant to attend as an abandonment of his appeal.

9. 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.

10. 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:

"First of all [the point was taken] that there was an entitlement of the applicant not to be present if he did not want to be. He was entitled to be present if he did so want, but he was not in custody. He was not on bail. There was no recognisance which he had entered into in order to require his presence at the court at the hearing of the appeal and it was simply a question of whether he chose to come or not. One gets this in the Court of Appeal, Criminal Division, where an appellant is entitled to be present at his appeal against conviction, but there is no obligation upon him to be present if he is not in custody and chooses not to come and see what happens."

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

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

21. 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?

22. MR OVERBURY: No, my Lord.

23. MISS GARDINER: No, my Lord.

24. MR JUSTICE HENRIQUES: Thank you.