Drinkwater, R (on the application of) v Solihull Magistrates' Court & Anor

A criminal court must exercise great care before continuing a trial in a defendant’s absence, particularly where absence results from involuntary illness. The defendant’s general right to be present, and the overall fairness of the proceedings, take priority over expedition where refusal of an adjournment will prevent the defendant giving materially important evidence. The court must distinguish the ordinary adjournment factors from the stricter principles governing trial in absence. Medical evidence must be assessed fairly and as a whole. A short criminal trial should also be actively timetabled and managed so that part-heard adjournments are avoided.

The claimant sought judicial review of the decision of Solihull Magistrates’ Court on 19 July 2011 to refuse a further adjournment of a part-heard assault trial and to continue in the absence of the claimant and her co-defendant. The claimant was medically certified as unfit to attend because of depression and would have been unable to give evidence in support of her self-defence case. The magistrates convicted both defendants. Permission had been granted by Lindblom J, and the claim was directed to a Divisional Court. The central issues were whether the magistrates had lawfully exercised their discretion to adjourn and whether it was fair to proceed without the claimant.

1. Appeal allowed. The magistrates’ decision to refuse an adjournment and proceed in the defendants’ absence was flawed.
2. The ordinary factors governing adjournments identified in Crown Prosecution Service v Picton [2006] EWHC 1108 (Admin) remained important. They included expedition, the likely length and consequences of delay, the reasons for the application, the history of previous adjournments, and the extent to which refusal would compromise the defendant’s ability to present the defence.
3. Those factors had to be applied alongside the stricter principles in Hayward, Jones and Purvis [2001] 2 Cr App R 156, affirmed in Jones [2002] UKHL 5. A defendant generally has a right to be present. The discretion to continue in the defendant’s absence must be exercised with great caution and close regard to overall fairness, and is particularly restricted where the absence results from involuntary illness or incapacity.
4. The magistrates had treated the claimant’s absence as substantially voluntary despite the medical evidence expressly stating that she was unfit to attend for two months. They also misunderstood the evidence concerning the timing and effect of the increased medication. The claimant’s inability to give evidence was especially significant because self-defence was central to her case.
5. The change from three magistrates to two did not itself create an irregularity. Nor was the failure expressly to consider whether the bench could reconvene shortly after 19 July, in the circumstances found, a separate public-law error.
6. Sir John Thomas added that magistrates’ trials should ordinarily be timetabled at the outset, with estimates rigorously scrutinised and the hearing actively managed. Failure to do so may create serious delays and risks to the fairness of the eventual trial.

1. Solihull Magistrates’ Court: on 19 July 2011, refused an adjournment, proceeded in the defendants’ absence, and convicted both defendants.
2. High Court (Administrative Court), Divisional Court: permission granted by Lindblom J on 9 November 2011; the appeal was allowed.