Umerji, R. v

A legally represented accused may be sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 without being physically present. Section 122 of the Magistrates’ Courts Act 1980 deems a represented party not absent unless legislation expressly requires personal presence, and section 51 contains no such requirement.

In any event, a failure to secure personal attendance at a section 51 hearing would be procedural. It would neither remove the magistrates’ power to send the case nor deprive the Crown Court of jurisdiction. Invalidity depends on Parliament’s purpose and any resulting prejudice. A defendant who consented to representation and suffered no prejudice cannot rely on the point belatedly. An extension of time requires the interests of justice and substantial injustice; an absconder’s prolonged delay weighed decisively against relief.

The applicant was convicted in his absence at a retrial in the Crown Court at Manchester of conspiracy to cheat the public revenue and conspiracy to transfer criminal property. He received concurrent sentences of 12 years’ and five years’ imprisonment.

An earlier conviction had been quashed and a retrial ordered by the Court of Appeal in R v Abdullah Allad and Adam Umerji [2014] EWCA Crim 421. The applicant again chose not to attend or be represented at the retrial.

He applied 554 days late for leave to appeal, contending that the magistrates’ court lacked power in 2009 to send him for trial because, although represented by counsel, he was not physically present. The central questions were whether section 51 of the Crime and Disorder Act 1998 required personal attendance and, if so, whether any breach invalidated the Crown Court proceedings.

1. Application refused. The court refused an extension of time to seek leave to appeal against conviction. The applicant had not shown substantial injustice, and the delay, viewed with his absconding and failure to raise the point for many years, made the application an abuse of process.

2. Section 51(1) of the Crime and Disorder Act 1998 does not require an accused’s physical presence when an indictable-only charge is sent to the Crown Court. Under section 122 of the Magistrates’ Courts Act 1980, a represented absent party is deemed not absent unless an enactment expressly requires personal presence. The words that an accused appears or is brought before the magistrates do not themselves impose that requirement.

3. The court contrasted the express requirements in sections 17A and 18 of the Magistrates’ Courts Act 1980 that specified procedures be carried out with the accused present. Section 51 contains no equivalent language. The later procedural opportunity to indicate an intended plea does not alter that conclusion. It is not a plea and only informs limited case-management directions.

4. Alternatively, even if section 51 required attendance, a breach would be procedural. It would not deprive either the magistrates’ court of power to send the case or the Crown Court of jurisdiction. The objection should have been raised in the Crown Court under section 2(2) and (3) of the Administration of Justice (Miscellaneous Provisions) Act 1933; it could not then be raised on appeal.

5. Applying the principle in R v Soneji [2005] UKHL 49, invalidity depends on whether Parliament intended total invalidity and on the consequences of non-compliance. No prejudice arose here: the applicant had sought to be represented in his absence, and later Crown Court hearings occurred without any challenge to the sending decision.

• Court of Appeal (Criminal Division): Refused the applicant’s application for an extension of time to seek leave to appeal against the retrial convictions.
• Court of Appeal (Criminal Division): In R v Abdullah Allad and Adam Umerji [2014] EWCA Crim 421, allowed the appeals from the first trial, quashed the convictions and sentences, and ordered a retrial.
• Crown Court at Manchester: On 29 October 2018, following the retrial before Judge Field QC and a jury, convicted the applicant in his absence and imposed concurrent sentences of 12 years’ and five years’ imprisonment.
• Crown Court: In 2011, convicted the applicant in his absence. Those convictions were later quashed on appeal.