Morsby v Tower Bridge Magistrates' Court

When deciding whether to rescind a conviction entered in a defendant’s absence, the magistrates’ court must ask whether a rehearing is in the interests of justice. A defendant’s fault may be relevant, but it is not determinative. Unless the evidence shows that the absence was deliberate and voluntary, a rehearing will normally be appropriate so that the defendant can defend himself. The discretion to proceed in the defendant’s absence requires particularly careful consideration, especially where the defendant is unrepresented. The standard of justice does not fall because the charge is relatively minor. Excessive weight must not be placed on an alleged failure by a defendant in custody to contact the court where it is uncertain that he knew of the trial date or could realistically arrange his production.

The claimant had been convicted in his absence at Tower Bridge Magistrates’ Court of obstructing a police officer. He was then in custody on separate, more serious charges and had not been produced for the trial. On being produced on 7 November 2006, he applied for the conviction to be reopened under section 142(1) of the Magistrates' Courts Act 1980. The District Judge refused, treating the claimant’s failure to contact the court as the relevant fault.

The claimant sought judicial review, arguing that the District Judge had failed properly to apply the interests-of-justice test and had placed undue weight on his absence. The central issue was whether the conviction should be rescinded and the matter reheard in the claimant’s presence.

1. Claim allowed. The Divisional Court quashed the conviction and directed a rehearing. Under section 142 of the Magistrates' Courts Act 1980, the question was whether rescission and a rehearing were in the interests of justice.
2. The guidance in R v Hayward, R v Jones and R v Purvis [2001] 3 WLR 125, as reconsidered in R v Jones (Anthony) [2002] 2 WLR 524, applied with equal rigour in the Magistrates’ Court. Proceeding in a defendant’s absence required the exercise of discretion with great care. The relevant considerations included whether the absence was deliberate and voluntary, the public interest in a prompt trial, the effect of delay, and the disadvantage to the defendant of being unable to give evidence.
3. The claimant’s failure to communicate with the court could be relevant, but it was not determinative. The evidence did not establish that he knew the trial date or was realistically able, while in custody and without legal representation, to contact the court or secure a production order. The District Judge had therefore placed substantially too much weight on that factor.
4. A rehearing would normally be in the interests of justice where the evidence did not show deliberate and voluntary absence. The fact that the charge was relatively minor did not justify a lower standard of justice. The conviction and sentence consequently became of no effect under section 142(3).

1. Tower Bridge Magistrates’ Court: convicted the claimant in his absence on 26 October 2006 and refused on 7 November 2006 to rescind the conviction under section 142(1) of the Magistrates' Courts Act 1980.
2. High Court (Administrative Court): allowed the judicial review claim, quashed the conviction and directed a rehearing.