David Samuel Justice, R (on the application of) v Portsmouth Magistrates' Court

A magistrates’ court should proceed with an adult defendant’s trial in his absence only after applying the statutory requirements and the governing principles with great care. There is no statutory presumption that an absent defendant’s trial should proceed. The court must consider whether there is an acceptable reason for non-attendance and whether proceeding would be contrary to the interests of justice. Particular weight must be given to the defendant’s wish to attend and to be represented, the extent of the disadvantage caused by absence, and whether an adjournment would enable attendance. A trial in the absence of an unrepresented defendant is appropriate only in rare and exceptional cases. A failure to address these matters adequately may amount to irrationality and public law error.

The claimant sought judicial review of the decision of a district judge sitting at Portsmouth Magistrates’ Court to proceed with his harassment trial in his absence. The claimant had been unable to travel because of train strikes, lacked legal representation after his solicitors withdrew shortly before trial, and believed that remote attendance had been refused. The court sent him a video-link shortly before the hearing, but he did not see it. The trial proceeded and he was convicted.

The claimant had abandoned an appeal to the Crown Court after permission to apply for judicial review had been granted. The central issues were whether the Administrative Court should refuse relief because of alternative remedies and whether the decision to proceed in the claimant’s absence was lawful.

1. Alternative remedy. The existence of an appeal to the Crown Court, an application under section 142 of the Magistrates’ Courts Act 1980, or a case stated procedure did not require refusal of relief. The court had discretion, and could take account of the grant of permission, the claimant’s limited resources, his abandonment of the Crown Court appeal in reliance on that permission, and the fact that the claim had been fully argued. The claim was therefore considered on its merits.
2. Applicable principles. Section 11 of the Magistrates’ Courts Act 1980 must be read with the principles in Hayward [2001] EWCA Crim 168, as endorsed in Jones [2002] UKHL 5. The discretion to proceed in the absence of a defendant must be exercised with great care. A trial of an unrepresented defendant in his absence should occur only in rare and exceptional cases. The court must consider all relevant circumstances, including whether the defendant deliberately waived attendance or representation, whether an adjournment might secure attendance, the likely delay, the defendant’s wish for representation, and the extent of the disadvantage caused by absence.
3. Section 11(2A) imposes a separate mandatory requirement: the court must not proceed if it considers that there is an acceptable reason for the defendant’s failure to appear. Section 11(1)(b) does not create a statutory presumption requiring the court to proceed. The approach in Evans v East Lancashire Magistrates’ Court [2010] EWHC 2108 (Admin) illustrated the error of treating the provision as such.
4. The district judge had not adequately considered whether an adjournment would enable the claimant to attend voluntarily, whether he had waived representation, or the extent of the disadvantage caused by being unable to give his account. The claimant’s apparent willingness to attend, the train strikes, lack of alternative transport and lack of funds, together with the unexplained withdrawal of his solicitors, should not have been held against him. The judge also gave insufficient weight to the claimant’s wish to be represented.
5. The conclusion that proceeding was in the interests of justice, and that the claimant lacked an acceptable reason for non-attendance, was irrational in the public law sense and inadequately reasoned. The prejudice to the claimant’s fair-trial rights could not rationally be outweighed by the competing considerations identified.
6. The decision was quashed. The matter was remitted to Portsmouth Magistrates’ Court for reconsideration by a differently constituted court, potentially at another magistrates’ court.

This was a first-instance judicial review claim. The claimant’s appeal to the Crown Court against conviction was abandoned after permission to apply for judicial review had been granted. The Administrative Court granted relief by quashing the decision and remitting the matter to a differently constituted magistrates’ court.