Killick v West London Magistrates' Court

A criminal court must exercise the discretion to proceed in a defendant’s absence with the utmost care and caution. Where medical evidence shows that a defendant is unfit to attend, proceeding will be very rare unless the defendant is represented and asks for the trial to begin, or there is a truly compelling and exceptional reason. If the court doubts the medical evidence, it should ordinarily state its concerns and allow an opportunity to address them. A weak medical certificate may justify refusing an adjournment and proceeding with the trial. Stronger, unchallenged psychiatric evidence may require a conviction to be reopened under Magistrates' Courts Act 1980 section 142, or at least an adjournment for further inquiry.

James Killick was convicted in his absence by West London Magistrates' Court of plying for hire without a licence and driving without third-party insurance. His application to adjourn the trial, supported only by a brief general practitioner’s certificate, was refused on 15 February 2012. The trial proceeded in his absence on 16 February.

On 23 February, the court received a report from a consultant forensic psychiatrist stating that Mr Killick had a severe schizo-affective psychotic illness, was unfit to plead and unfit to attend court, and required urgent treatment. The District Judge refused to reopen the conviction or adjourn sentence under section 142 of the Magistrates' Courts Act 1980. The central issues were whether the decisions of 16 and 23 February were lawful and whether the convictions should be quashed.

1. Decisions of 15 and 16 February. The court accepted that the GP certificate was extremely weak. The District Judge was entitled to refuse the adjournment on 15 February. In the absence of further persuasive material, the lay magistrates were also entitled to permit the trial to proceed on 16 February. The same central issue arose on both occasions, and no radically different approach was required.
2. Proceeding in absence. The governing principle was that the court must not proceed without satisfying itself that the adjournment request can properly be rejected and that no unfairness will result. The discretion must be exercised with the utmost care and caution. Where medical evidence establishes involuntary illness or incapacity, proceeding will be very rarely justified unless the defendant is represented and asks for the trial to begin. If the court considers the medical grounds spurious or inadequate, it should ordinarily state its concerns and give the defendant an opportunity to resolve them. A truly compelling and exceptional reason may nevertheless justify proceeding.
3. The section 142 application. The position on 23 February was materially different. The psychiatric report described serious psychotic illness, continuing treatment, and unfitness both to plead and to attend court. There was no suggestion that the excuse was spurious. Although the District Judge apparently rejected the report, he gave no reasons and identified no compelling or exceptional basis for proceeding despite the medical evidence. He should at least have adjourned for further inquiries if he was not persuaded.
4. The refusal to reopen the conviction or adjourn was therefore unlawful. The section 142 application ought to have been allowed, and the convictions were quashed. The Crown Prosecution Service was left to decide whether to pursue the matter afresh.

• West London Magistrates' Court: convicted the claimant in his absence on 16 February 2012 and refused on 23 February 2012 to reopen the convictions or adjourn sentence under section 142 of the Magistrates' Courts Act 1980.
• High Court (Administrative Court): held that the decisions of 15 and 16 February were lawful, but that the decision of 23 February was unlawful. The convictions were quashed.