Salmon v Leeds Crown Court

A criminal appeal may proceed in the defendant’s absence where the court has given a fair and sufficient opportunity to attend and the defendant has voluntarily chosen not to do so. In exercising its adjournment and case-management powers, the court must apply the overriding objective in the Criminal Procedure Rules 2015, balancing fairness to the parties, the defendant’s Article 6 rights, the interests of witnesses and victims, expedition, and the seriousness and complexity of the case.

Judicial review will fail where the decision to proceed in absence was reasonably open to the criminal court. Unmeritorious claims that statute law requires the defendant’s consent, or that a defendant can remove the court’s jurisdiction by asserting common-law status, do not affect the court’s jurisdiction.

The claimant sought judicial review of Leeds Crown Court’s decision on 26 July 2019 to hear and dismiss his appeal against conviction in his absence. His appeal had been repeatedly adjourned. On the hearing date he informed the court that his car had broken down and that the RAC would take two or three hours to attend.

The Crown Court put the case back from 11 am until noon, contacted the claimant to tell him that the hearing would proceed, and then heard the appeal when he did not attend. The claimant maintained that he could not attend, and also advanced arguments that the Crown Court lacked jurisdiction because he had invoked common-law jurisdiction. Permission to challenge the decision to proceed in absence was granted. The central issue was whether that decision was reasonably open to the Crown Court.

1. Claim dismissed. The Crown Court was entitled to adjourn the appeal briefly and then proceed in the claimant’s absence. The question was whether its decision was reasonably open to it.
2. Under Crim PR r 1.1(2), the court had to apply the overriding objective. Relevant considerations included fairness to the prosecution and defence, recognition of the defendant’s rights under Article 6 of the European Convention on Human Rights, the interests of witnesses and victims, efficient and expeditious conduct, the gravity and complexity of the case, and the consequences for those affected.
3. The case was over a year old and the prosecution witnesses had attended on several occasions. The claimant was told that the hearing would begin at noon. On his own account, he was only about 10 miles, or 10 minutes, from court. He chose to remain with his vehicle awaiting the RAC and made no attempt to attend. The Crown Court was therefore entitled to treat him as voluntarily absent and to proceed fairly in his absence.
4. The presence of counsel appointed under s 36 of the Youth Justice and Criminal Evidence Act 1999 provided an additional safeguard because the prosecution witnesses could be cross-examined.
5. The claimant’s jurisdictional arguments had no legal effect. The magistrates’ court had jurisdiction to try the public-order offence, his consent was not required for statute law to apply, and the Crown Court had jurisdiction over his appeal. In particular, Crim PR r 3.5(f) gave the criminal courts power to fix, postpone, bring forward, extend, cancel or adjourn a hearing.
6. Even if the claimant had attended, he identified no substantive defence beyond repeating his jurisdictional objection. The claim was not dismissed on the alternative-remedy ground because he might have been advised by court staff to seek judicial review.

1. Leeds Magistrates’ Court: convicted the claimant of a public-order offence and imposed a fine, costs and victim surcharge.
2. Leeds Crown Court: heard and dismissed the claimant’s appeal against conviction and sentence in his absence on 26 July 2019.
3. High Court (Administrative Court): dismissed the judicial review claim, upholding the decision to proceed in the claimant’s absence.