Rathor, R (on the application of) v Southampton Magistrates Court

This is an application for judicial review of two decisions; first, the decision of District Judge Greenfield of 4 December 2017 in which he refused an application by the claimant, who is the defendant in the underlying criminal proceedings, to adjourn the trial and decided to proceed with the trial in his absence. Secondly, the decision of 20 December 2017 by the same District Judge refusing to set aside that decision pursuant to his powers under Section 142 of the Magistrates Court Act 1980.

The background can be briefly summarised thus. The claimant, Mr Rathor, was alleged to have committed an assault on 9 December 2016. The complainant did not make a complaint to the police until 9 February 2017. The complainant and the defendant were the only people present. It was one person’s word against another’s. Mr Rathor was asked to attend the police station voluntarily, and he did so, in February 2017. He was interviewed. He made a voluntary statement and he denied the offence. He was summonsed to appear before the Southampton Magistrates Court on 21 April 2017 in respect of an offence of common assault and battery, and he entered a not guilty plea.

Subsequently the case was listed for trial on no fewer than three separate occasions but on each of those occasions the case was adjourned for reasons which had nothing to do with the fault of Mr Rathor. He turned up and was ready to attend the trial and give his evidence. On two of those occasions the CPS requested an adjournment so that they could have further time to consider CCTV evidence, and on the third occasion the court list was so full that they could not get around to hearing the case against Mr Rathor.

The case was then listed for 4 December 2017. On the previous evening Mr Rathor became unwell. He went to a local walk-in centre for medical assistance and a certificate was provided suggesting that he had suspected food poisoning. That certificate did not comply with the specific requirements of the Criminal Procedure Rules (“CPR”), in that it did not address the question of whether he was well enough to attend his trial on the following day. However, Mr Rathor had the advantage of being assisted by an advocate who attended the trial on his behalf and explained the situation to the District Judge. He applied for an adjournment. The CPS opposed the application, essentially on the basis that the case was now getting rather stale and that the certificate did not confirm that Mr Rathor was too unwell to attend the trial.

The District Judge, perfectly reasonably, put the matter back so that the advocate could take instructions from his client. There was a telephone conversation, and the advocate then reported back to the court that Mr Rathor had confirmed over the telephone that he was in bed, that he was suffering from vomiting and diarrhoea and he could not move out of the house, and he really did not feel well enough to attend the court. The advocate submitted to the District Judge that Mr Rathor had attended every previous hearing and he did have a note that he had attended hospital with apparent food poisoning. He also pointed out that if the matter had to be adjourned yet again, the relative delay was fairly short in that the trial could take place on 16 January, which, taking into account the Christmas holiday, was little over a month away.

Despite those submissions, the District Judge refused the application. The advocate took a note which summarised the reasons given by the District Judge as follows: a) the sick note was insufficient and did not state that Mr Rathor was unfit to attend court and b) the overriding principle under the CPR was that the case should be heard quickly and the offence was over a year old. Both of those were undoubtedly relevant factors to take into account, but they were not the only ones.

The advocate’s note does not indicate that the key principles summarised in the case of R v Jones (Anthony) [2001] EWCA Crim 168 in the Court of Appeal were taken into consideration. A list of the principles which guide the court in relation to the trial of a defendant in his absence is set out in paragraph 22 of that judgment. It is unnecessary for the purposes of this judgment to repeat that list, but particular emphasis is placed on the fifth principle, which is that fairness to both parties should be taken into account. The Judge must have regard to all the circumstances of the case including, in particular, the nature and circumstances of a 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 at the trial; whether an adjournment might result in the defendant being caught or attending voluntarily and not disrupting the proceedings and the likely length of such an adjournment; the presence or otherwise of legal representation; whether he could give instructions in his absence; and most importantly perhaps, 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.

The relevant provisions that guide the Magistrates Court when considering whether or not to order the trial in the absence of the accused person are set out in Section 11 of the Magistrates Court Act 1980. As I have said the Jones principles were not referred to in the contemporaneous note of Mr Rathor’s advocate, but in the Magistrates Court’s response to this application in the acknowledgement of service and summary grounds of defence, it is stated that the District Judge did have regard to the Jones checklist. The problem is that one does not know how he had regard to it, or indeed what, if any, reliance he placed on the various factors that had to be balanced. That makes it more difficult for this court to be satisfied that the Magistrates’ Court approached the matter in the way it was obliged to under Section 11.

Section 11(1)(b) provides that if the accused is over 18, the court should proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so. On behalf of Mr Rathor, Mr Gardner submitted that the District Judge rightly directed himself in relation to Section 11(1)(b) as the starting point, but failed then to go on to consider the qualifications to that rule set out in the following subsections, particularly subsection 2(A). That provides that the court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear. [Emphasis added].

That, Mr Gardner submitted, involved considering more than the adequacy or sufficiency of the medical evidence. In support of that proposition, he referred to a number of authorities, including the well-known case of R v Anthony Jones to which I have already referred. This time, however, he drew attention to Lord Bingham’s speech in the House of Lords [2002] UKHL5, [2003] 1 AC 6, especially at paragraph 13, in which he stated that 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. That confirmed his earlier dicta in the Divisional Court in R v Bolton Magistrates Court ex parte Merna [1991] Criminal Law Review 848 to the effect that if the court believes the grounds for an adjournment are inadequate, the court should ordinarily express its doubts and thereby give the defendant an opportunity to seek to resolve them. “If a defendant claims to be ill with apparently responsible professional support for his claim, the court should not reject that claim and proceed to hear the case in a defendant’s absence without satisfying itself that the claim may properly be rejected and that no unfairness will thereby be done.”

The principle is applicable whether the trial takes place in the Magistrates Court or the Crown Court; that is confirmed by the case of M v Burnley, Pendle and Rossendale Magistrates Court [2009] EWHC 2874 (Admin), a decision of Langstaff J. In that case the Judge held that when considering a reason for non-attendance, the court must consider the reasons given in the evidence and expressly (I stress expressly) state the conclusions for rejecting evidence. He said in paragraph 22:

“Plainly a court considering whether to adjourn an application or not will need to be careful to distinguish genuine reasons for a defendant not being present from those reasons which are spuriously advanced or designed to frustrate the process. However, if it should come to the conclusion that either of these two latter circumstances is the case, the court should say so.”

He said, and I respectfully agree, that a conclusion that the excuse provided by the defendant for his absence is spurious or designed to frustrate the process should not be left to inference.

On the evidence before the court in the present case it cannot be inferred that the District Judge felt that the defendant was providing spurious evidence or that his absence was designed to frustrate the process. He made no such express finding, and indeed on the evidence before him there was no reason for him to make such a finding. He merely pointed to the fact that the medical certificate was not accepted by the court. Of course, the court is not bound by a medical certificate that casts no light on a person’s fitness to attend court, but it is obliged to take into account the fact that such a certificate has been provided.

In this case, it seems to me that the District Judge did not approach his discretion under Section 11 in the manner that was dictated by R v Jones. As Mr Gardner pointed out, the court cannot simply rely on the adequacy or otherwise of the medical certificate. Even though the District Judge was entitled to take, as a starting point, paragraph 11(1)(b), he was also entitled, and indeed obliged, to consider whether it would be contrary to the interests of justice to refuse the adjournment. Nowhere is there any evidence that any consideration was properly given to the consequences for the defendant of not having him present in a case which turned on one man’s word against another’s.

Nor is there any explanation given by the District Judge, in either version of his reasons that the court has before it, as to why it was felt that getting the case on fast trumped the inability of the defendant to give evidence in his own defence, or that the inadequate medical evidence cast doubt upon the defendant’ unfitness to attend court, given that the District Judge had taken the proper step of specifically adjourning the application in order to get some evidence as to his current state of health.

The contemporaneous note that was taken of the District Judge’s judgment by Mr Rathor’s advocate appears to indicate that he considered that the default position was that the case should go forward in the defendant’s absence. That, as Mr Gardner points out, was the very error into which the Magistrates fell in the case of R (Evans) v East Lancashire Magistrates Court [2010] EWHC 2108 (Admin). In that case Munby LJ held at paragraph 39 that reliance on Section 11(1)(b) of the Magistrates Court Act as a statutory presumption that the court should proceed in the absence of a defendant, to the detriment of the terms of subsection 2A of the same section of the Act, was an error of law. In my judgment the same error of law infected the original decision in this case to refuse the adjournment. The District Judge either did not consider the qualification in subsection 2A or else, if he did, he gave no adequate reasons for finding that there was no acceptable reason for the defendant’s failure to appear. It would have been open to the District Judge, had he looked at the matter in the round, to have reached a different decision. This decision was infected so much by an error of law that in consequence this court must quash it.

That means that it is strictly unnecessary for me to consider the remaining grounds of challenge, in particular:

This means that, having quashed the original decision, this court does not necessarily need to go on to consider Mr Gardner’s challenge to the second decision, which was the refusal to apply Section 142 in a lawful way. The District Judge had relied upon the decision of the Divisional Court in Houston v Director of Public Prosecutions [2015] EWHC 4144 (Admin) as authority for the proposition that section 142 of the 1980 Act is only to be utilised as a form of slip rule to set aside mistakes made by the earlier court’s decision, and that it cannot be utilised in any other way. However, that decision, and others which take that narrow view of the ambit of section 142, are contrary to a line of other authorities, including an earlier decision of the Divisional Court, which adopt a different approach.

Even if there had been no earlier authorities on the point, one only has to look at the text of Section 142(1) and (2) to see that the approach taken in Houston is too narrow a reading of it. Although the section is entitled “Power of Magistrates Court to reopen cases to rectify mistakes etc.” subsection (1) says in terms, ‘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’. Subsection (2) provides that ‘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’. The statutory test is therefore whether the interests of justice would be served by acceding to the application to rescind the earlier order and direct a re-hearing.

Mr Gardner drew the court’s attention to a number of cases decided prior to Houston in which, in not dissimilar circumstances to the present case, the court held that the power should be exercised so that where, for example, further medical evidence had come to light to show that in fact a defendant was too ill to attend the trial on the first occasion, the Magistrates’ court should set aside the conviction. The classic case is that of R v Ealing Magistrates Court ex parte Sahota [1998] 162 JP 73. That approach was followed by the Divisional Court in R (Manorgale) Ltd v Thames Magistrates Court [2013] EWHC 535 Admin. At paragraph 8 Laws LJ said this:

It is easy to understand why the Divisional Court in Houston decided the case in the way that that it did, although a narrow reading of s.142 was unnecessary for it to reach that conclusion. That was a case in which the excuse given by the defendant for not turning up on the day of trial was simply that he had forgotten the date. It is quite clear that that could not engage the exercise of the power under Section 142. It seems that Sahota, Manorgale, and other cases in that line of authorities were not cited to the Divisional Court on that occasion, but the cases that were cited and which are referred to in the judgment at paragraphs 35 and 36, and which appear to support a narrow reading of s.142, all deal with situations similar to that with which the court was then faced, either where the defendant was present at court and there was some technical objection to proceeding, or where the defendant knew about the trial date and simply forgot to turn up. That is a long way away from a situation in which the defendant was too ill to attend court, and that fact is confirmed by subsequent medical evidence, especially if he could not have produced that evidence at the time.

In this case, Mr Rathor’s failure to attend his trial was confirmed to be for a legitimate reason by a proper medical certificate provided by his GP, who had attended him at home. The doctor certified that he was suffering from infectious gastroenteritis, which, had he attended court on that occasion would possibly have resulted in a lot of other people becoming ill. His attendance in those circumstances would not have been something that one would reasonably expect to happen. If the Magistrates’ court had simply asked itself whether it was in the interests of justice for the case to be reopened in circumstances such as this, then it would have come to only one conclusion, since plainly it was. The fresh evidence established that Mr Rathor’s non-attendance at trial was involuntary. It was not his fault. Set against the pattern of his previous turning up when required, and the fact that the case against him turned on his word against that of the complainant, all the factors in Jones would have pointed to one conclusion, if his medical condition had been known to the District Judge at the earlier hearing.

When the District Judge came to review his earlier decision under Section 142, he failed to ask himself the question: if this information about the defendant’s state of health had been available at the time, would the court have reached the same conclusion about refusing the adjournment? The answer to that is plainly no. Was the defendant in any way at fault for the fact that this information was not available at the time? No. He cannot be held responsible for the fact that his GP had not yet managed to attend him. The doctor’s certificate also sheds light on the information about his state of health that was originally before the court (to which, in fact, there had been no satisfactory explanation given for attributing very little, or no, weight). Had those questions been addressed, it would have been obvious where the interests of justice lay.

Therefore, even if one were to read Section 142(2) as only giving a power to rectify a situation akin to mistake, and bearing in mind the authorities cited by Mr Gardner, it seems to me that it is possible to say that in hindsight the decision to proceed was made in error because all the facts that had a bearing on the exercise of judicial discretion were not known to the magistrates, and therefore were not taken into account. The power must be exercisable in a situation where: (i) the earlier decision to proceed in the defendant’s absence would not have been reached had the full facts been known and (ii) the reason why the full facts were not known was not attributable to any fault on the part of the defendant. I am not bound by the observations in Houston to reach a different conclusion.

However, as I have said, the point about Section 142 and the reconciliation of the diverging dicta about the ambit of the jurisdiction under it really does not arise for determination in this case, given my conclusions in relation to the challenge to the decision to refuse the adjournment in the first place.

Therefore, the court will quash both decisions and order that the matter be remitted back to the Magistrates to be considered by a differently constituted court.