Jones, R (On the Application Of) v Liverpool And Knowsley Magistrates' Court

When deciding whether to proceed with a criminal trial in the defendant’s absence, the court must distinguish between the defendant’s conduct and the failings of legal representatives. The defendant’s absence may be attributable to solicitors, yet still provide an acceptable reason for non-attendance where the defendant was blameless and had been misled about the hearing date.

Under section 11 of the Magistrates' Courts Act, the court must consider whether proceeding would be contrary to the interests of justice and whether an acceptable reason for absence has been given. A court must not rely on the supposed availability of representation for cross-examination where the solicitor cannot properly undertake that role without legal aid or adequate instructions. An arrest warrant requires a proper basis, particularly where the defendant would have attended had he known that attendance remained required.

The claimant sought judicial review of decisions made by Liverpool Magistrates' Court on 4 February 2014. The court proceeded with his trial in his absence, convicted him of harassment, and issued a warrant for his arrest without bail.

The claimant had been told by his solicitors, following an error by court staff, that the trial had been vacated and that he need not attend. Although the error was corrected before the hearing, the claimant was not contacted. The District Judge treated the absence as the fault of the defence solicitors and proceeded with the trial. The central issues were whether the refusal to adjourn and the decision to proceed in the claimant’s absence were lawful, and whether the arrest warrant had a proper basis.

1. The claim succeeded. The decision to refuse an adjournment and proceed with the trial in the claimant’s absence was unlawful. The conviction and the arrest warrant were quashed.
2. The District Judge was entitled to assess the application on the facts known at the time and to conclude that the claimant had been incorrectly advised by his solicitors. However, the claimant himself was blameless. The judge wrongly conflated the claimant’s position with the failings of his legal representatives.
3. The court was required to consider sections 11(1)(b) and 11(2)(a) of the Magistrates' Courts Act. It had to ask whether proceeding in the defendant’s absence was contrary to the interests of justice and whether an acceptable reason for non-attendance had been given. Those provisions had not been given sufficient consideration.
4. The District Judge also erred in treating the solicitors as available to cross-examine the complainant under section 38. In circumstances where legal aid had not been granted, the solicitors lacked adequate instructions and could not properly undertake even that limited role. Proceeding therefore left no legitimate method of testing the complainant’s evidence.
5. The arrest warrant was unlawful. Although the claimant had failed to answer bail, there was no basis to conclude that his failure was directly his fault or that he would have failed to attend had he known that the hearing remained listed. A notice to attend would have been sufficient.
6. Given the passage of time, the claimant’s good character and the expiry of the conditional discharge and restraining order, the court exercised its discretion not to order a retrial. A defendant’s costs order from central funds and legal aid taxation were ordered; no costs order was made against the magistrates’ court.

Permission to apply for judicial review was granted by a single judge on 15 April 2014. The Divisional Court determined the judicial review claim and quashed the impugned decisions.