M v Burnley, Pendle & Rossendale Magistrates' Court

When deciding whether to proceed in the absence of a defendant, a magistrates’ court must exercise its discretion judicially and with regard to fairness. Where the absence is involuntary, proceeding will ordinarily be justified only in a very rare or exceptional case. The court must distinguish genuine reasons from excuses intended to frustrate the proceedings and must state that conclusion if it relies on it. It must identify the exceptional factors supporting continuation. The presence of prosecution witnesses, the age of the listing, and the general public interest are insufficient without more. These principles apply to applications concerning anti-social behaviour orders as well as criminal trials.

Two brothers, aged 13 and 14, were subject to anti-social behaviour orders. Following their move to another area, the Lancashire Constabulary applied to vary the orders. On the listed hearing date, one brother was at school and the other could not attend because his mother was indisposed. Their solicitor attended, but the Magistrates proceeded in their absence and varied the orders.

The brothers sought judicial review. The principal issue was whether the Magistrates had lawfully exercised their discretion under the Magistrates’ Courts Act 1980 to proceed rather than adjourn, having regard to the brothers’ involuntary absence and the fairness of determining the application without them.

1. The claim succeeded. The decision of the Magistrates on 16 December 2008 was quashed.
2. The audi alteram partem principle requires each party to have a proper opportunity to be heard. The guidance concerning proceeding in a defendant’s absence in R v Anthony Jones [2002] UKHL 5, and the associated appellate guidance, applies with equal force to magistrates’ court proceedings and to applications concerning anti-social behaviour orders.
3. Although the court has power to proceed, it should do so where the absence is involuntary only in a very rare or exceptional case, or where the explanation is genuinely spurious or intended to frustrate the process. If the court relies on the latter conclusion, it must state it clearly.
4. The Magistrates had expressly found that one claimant was unable to attend and had not treated the other’s absence as voluntary. They identified no compelling or exceptional reason for proceeding. The attendance of witnesses and the fact that the case had been listed since 10 November were irrelevant or insufficient considerations. The public interest was not so compelling, since the original order and other legislation continued to provide protection.
5. The claimants’ age had been considered. Article 6 and the absence of a right of appeal did not create a different test, although the absence of an appeal made judicial review the only practical route to relief. The court declined to decide finally whether the varied order was a nullity during its lifetime, but held that relief retained limited practical utility.

The original anti-social behaviour orders therefore remained in force in principle until May 2009. The claimants were awarded detailed assessment of their publicly funded costs, and reporting restrictions were imposed to protect their identities.

The judgment itself does not state a prior appellate decision in the same proceedings. Permission for judicial review had been granted by HHJ Pelling QC on 3 July 2009.