Lehram Capital Investments Ltd, R (on the application of) v Southwark Crown Court & Anor

Fairness in criminal proceedings is fact- and context-specific. A court reviewing an alleged breach of procedural fairness must make its own assessment of fairness, although case-management decisions attract substantial respect.

An adjournment application must be scrutinised rigorously. Relevant matters include expedition, the parties’ ability to present their cases, responsibility for the difficulty, the history of the proceedings and the likely consequences of delay.

A company appearing in criminal proceedings must establish that its proposed representative has written authority, and the authority of the person granting it. A court may refuse an overseas live link where the proposed participants, their locations, authority and relevant foreign-state arrangements have not been identified.

Lehram Capital Investments Ltd sought judicial review of Southwark Crown Court’s dismissal of its appeal against convictions and sentence imposed by the magistrates’ court. The challenge concerned refusal of an adjournment, refusal to permit participation by video link, the company’s alleged lack of proper representation, procedural unfairness and apparent bias.

The Crown Court had required the company to provide written authority appointing a representative. It also required information identifying any person seeking to participate remotely and the location from which participation would occur. The company did not provide the required authority or information and did not attend through legal representation or an authorised representative.

The central questions were whether the refusal to adjourn, refusal to permit remote participation and consequent dismissal of the appeal were unlawful or procedurally unfair.

1. Fairness and review. The court’s task in an alleged breach of natural justice is to make an independent judgment about whether the procedure was fair. Fairness depends on the statutory framework, the nature of the decision and all the circumstances. A case-management decision is not reviewed afresh merely because another decision might have been preferred.
2. Adjournment. The Crown Court had applied the required rigorous approach. The company knew when the respondent’s material was due, had a duty under the Criminal Procedure Rules to raise non-service promptly, and waited until shortly before the hearing. The appeal bundle contained comparatively little new material, and the company had ample knowledge of the underlying case. Refusal of the adjournment was within the court’s discretion.
3. Representation. Criminal Procedure Rule 46.1 required written authority for a person acting for a corporate defendant. The authority of the person granting that authority also had to be established. The emails relied upon were ambiguous, did not identify a proper authorisation or board authority, and described the proposed participant principally as a translator. The company therefore was not properly represented.
4. Video link. Section 51 of the Criminal Justice Act 2003 permitted a live link from outside England and Wales, but only after consideration of all relevant circumstances. The court needed to know who would participate, where they were located, whether they had authority, whether the foreign state objected, and whether the participation could be effective. The company supplied none of that information. The earlier indication that a video link would be granted was for representation and did not create a continuing entitlement once no authorised representative had been identified.
5. Dismissal and bias. Under the preserved customary procedure for Crown Court appeals, an appellant who neither appeared nor was represented could have its appeal dismissed. The Crown Court was entitled to take that course. The circumstances, viewed as a whole, would not lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The judicial review claim was dismissed.

The judgment itself describes the following procedural history:

• Southwark Crown Court: dismissed the claimant’s appeal against conviction and sentence on 17 August 2021.
• High Court (Administrative Court): permission was initially refused by Bennathan J and later granted by Linden J. Knowles J dismissed the judicial review claim.