Johnson, R (on the application of) v DPP

A magistrates’ court should proceed in a defendant’s absence only with the utmost care and caution. The discretion is rarely appropriate where absence is caused by illness or incapacity, particularly where the defendant is unrepresented and has not requested that the trial continue. The court must apply the principles governing absent defendants, adapted to summary proceedings. Fairness to the defence remains paramount. The seriousness of the offence is not a relevant factor in deciding whether to proceed in the defendant’s absence. Where credible evidence indicates mental instability, the court should ordinarily secure the defendant’s attendance and consider the statutory procedure for medical examination and a possible order under the Mental Health Act 1983.

The claimant sought judicial review of a District Judge’s decision to try him in his absence in criminal proceedings for harassment and unauthorised access to computer material. He had a history of psychiatric illness, had recently been admitted to hospital, and was unrepresented because his solicitors had withdrawn on grounds of professional embarrassment. He had written to the court asserting that he was unfit to stand trial and seeking an adjournment. The District Judge proceeded, convicted him, and referred to the seriousness of the charges and the authorities on trials in the defendant’s absence. The central issues were whether the decision was lawful and fair, and what procedure should have been adopted.

1. The convictions were quashed. The principles in Hayward, Jones and Purvis and [2001] QB 862, as confirmed by R v Jones (Anthony) [2003] 1 AC 1, applied to summary trials, suitably adapted. The discretion to begin a trial without the defendant must be exercised with the utmost care and caution.
2. A trial should rarely proceed where the defendant’s absence is attributable to illness or incapacity, unless the defendant is represented and asks for the case to continue. The claimant’s absence was not shown to be a voluntary waiver. His solicitors, rather than he, had ended the retainer, and his assertion of current illness was unsupported but credible in the light of the psychiatric history and recent hospital admission.
3. The District Judge therefore proceeded on a materially wrong basis in treating the claimant as having withdrawn instructions. The circumstances indicated mental instability and recent loss of representation. It was wrong in principle to proceed in the claimant’s absence.
4. The District Judge also erred in treating the seriousness of the charges as a factor favouring continuation. Following R v Jones (Anthony), seriousness is not relevant to the decision whether to proceed in the defendant’s absence. That error alone would not have justified quashing the convictions.
5. The appropriate course had been to issue a warrant to secure attendance. If the charges were proved and the circumstances warranted inquiry into the claimant’s mental condition, the magistrates could adjourn for medical examination under section 11 of the Powers of Criminal Courts (Sentencing) Act 2000 and consider the procedure under section 37 of the Mental Health Act 1983.
6. The case was remitted for a fresh hearing before a different experienced District Judge and legal adviser. The claimant’s bail conditions were to continue, and updated psychiatric reports were desirable. If current medical evidence did not justify absence, the trial could proceed in the ordinary way.

The judgment records that an earlier judicial review application had been refused permission, with the final oral determination on 6 October 2004. The present claim challenged the subsequent convictions entered after the claimant’s trial in absence.