Hogan, R (on the application of) v Warwick County Court

A criminal appeal court has a discretion whether to adjourn when an appellant cannot attend. It must balance fairness to the defence and prosecution and consider all the circumstances, including the appellant’s conduct and the proportionality of further delay. The court may proceed where the appellant has failed to take reasonable steps to enable the case to be presented, provided it draws no improper adverse inference from the appellant’s absence, failure to give evidence or failure to advance a defence. Errors or failures by legal representatives will generally not justify judicial review of the resulting decision; the usual remedy is against the representative.

The claimant sought permission, on a renewed basis, to challenge the decision of Warwick Crown Court concerning his appeal against convictions for driving offences. His appeal had been repeatedly adjourned because of serious physical and psychological illness, but the Crown Court ultimately proceeded after concluding that he had not taken reasonable steps to enable his case to be put and upheld the magistrates’ order.

The claimant argued that the Crown Court should have adjourned, or reduced his driving disqualification in light of his changed medical circumstances. Nicola Davies J had concluded that the claim was not arguable. The issue before Collins J was whether permission should be granted.

1. The application was refused. The renewed claim was not arguable, and Nicola Davies J had been correct to reach that conclusion.
2. A court dealing with a criminal appeal has a discretion whether to adjourn or proceed. Fairness to the defence is of prime importance, but fairness to the prosecution must also be considered. The court must assess all the circumstances, including the appellant’s conduct and the length and proportionality of any further adjournment.
3. On the material before it, the Crown Court was entitled to conclude that the claimant had failed to take reasonable steps to enable his case to be presented. It was entitled to take account of the absence of representation, the failure to propose a statement or other means of advancing the case, and the likely duration of any further adjournment.
4. The Crown Court had properly avoided improper inferences. The absence of a previously advanced defence, the claimant’s failure to give evidence and his non-attendance did not permit an adverse inference against him. Those matters did not prevent the court from deciding, on the evidence before it, whether reasonable steps had been taken to present the case.
5. The court was entitled to rely on the position advanced by counsel. Applying Al-Mehdawi v Secretary of State for the Home Department [1989] UKHL 7, an individual will generally be bound by the acts of a legal adviser whom he has employed. Any remedy for damage caused by the adviser will ordinarily be a claim against that adviser rather than judicial review.
6. The submission that the claimant’s changed circumstances required alteration of the disqualification did not make the claim arguable. The Crown Court’s decision to uphold the magistrates’ order was lawful on the material before it.

1. High Court (Administrative Court): Nicola Davies J refused permission, concluding that the claim was not arguable.
2. High Court (Administrative Court): Collins J refused the renewed application and upheld the earlier refusal of permission.