Shirzadeh v Maidstone Magistrates' Court

A magistrates’ court may try an accused in his absence where the statutory discretion is exercised fairly and with careful regard to the circumstances. Deliberate absence is highly material, but the court must consider the risk of unfairness, representation, prejudice to the defence, delay, witnesses and the public interest. The same principles apply when deciding whether to order a rehearing after conviction, together with the fact that witnesses may have to give evidence again and that a full rehearing is available on appeal to the Crown Court. Magistrates’ reasons need not reproduce every relevant consideration. The question is whether their reasons disclose a clear error and whether, in the circumstances, they were entitled to act as they did.

The claimant sought judicial review of two decisions by Maidstone Magistrates’ Court. On 5 February 2003 the magistrates proceeded with his trial for indecent assault in his absence and convicted him. On 14 February they refused to direct a rehearing. The claimant had limited English, required an interpreter, and said that he had been confused about whether the trial would proceed after his co-defendant pleaded guilty. The magistrates considered that he knew of the trial and had deliberately failed to attend. The central issues were whether the decision to try him in his absence, and the refusal to reopen the case, fell within the statutory discretion.

1. Application dismissed. Neither decision of the magistrates was quashed.
2. Section 11(1) of the Magistrates’ Courts Act 1980 gives the magistrates a discretion to proceed where the prosecutor appears but the accused does not. That discretion must be exercised fairly. The guidance in R v Hayward and Others [2001] QB 862, as supplemented by the observations of the House of Lords reported at [2002] 2 WLR 524, provides the relevant framework.
3. The court must consider all the circumstances, including whether the absence was deliberate, whether an adjournment might secure attendance, the likely delay, representation, the ability to present the defence, the disadvantage caused by the defendant’s absence, the interests of victims and witnesses, and the effect on the fairness and conduct of the trial. In summary proceedings, account may also be taken of the possibility of an application under section 142 and the automatic right of appeal to the Crown Court, which involves a full rehearing.
4. The magistrates were entitled to infer that the claimant’s absence was deliberate. The presence of five young prosecution witnesses and the claimant’s lack of responsibility for earlier delays were relevant, but did not compel an adjournment. A trial in the absence of a defendant should be exceptional, although there is no absolute rule preventing it.
5. Section 142 of the Magistrates’ Courts Act 1980 gives a separate discretion to order a rehearing where that is in the interests of justice. The same fairness considerations remain relevant, with the additional burden of requiring witnesses to attend again. The magistrates were entitled to take into account the availability of a full Crown Court rehearing.
6. Magistrates’ reasons need not be as elaborate as those of a legally qualified court. The absence of express reference to every item in the Hayward checklist was not decisive. The question was whether the reasons disclosed a clear error and whether the magistrates were entitled to reach their decisions. They were.

The claimant applied for judicial review of two decisions of Maidstone Magistrates’ Court. The High Court (Administrative Court) dismissed the application and declined to quash either decision.