Divisional Court
| Author | J A Coutts |
| DOI | 10.1177/002201839405800101 |
| Date | 01 February 1994 |
| Published date | 01 February 1994 |
| Subject Matter | Divisional Court |
DIVISIONAL
COURT
APPEARANCE
OF INJUSTICE
RVEly JJ, ex p Burgess
In the absence of exceptional circumstances, such as misbehaviour,
absconding, illness or a desire not to be present, the presence of the
accused is a necessary requirement throughout a criminal trial. When the
bench agrees to view the scene of the alleged offence and visits the locus
in quo, does the general requirement of the presence of the accused still
apply? In R v Ely JJ, ex p Burgess (1993) 157 JP 484, the case for the
prosecution against the defendant, who was charged with assault
occasioning actual bodily harm, had concluded, when his solicitor
suggested that the bench visit the scene of the alleged offence, to assist
them to determine whether aprosecutionwitness could have seen (as he
stated he had seen) from a seat in the bar inside, what had happened
outside, the building. Although the defendant's solicitor joined the three
justices and their clerk and the prosecutor at the locus in quo, the
defendant was refused permission by the justices to be present at the
viewing. Apparently, the witness had by this time been released and the
justices considered that if he would not be there, neither should the
defendant.
The
Divisional Court stated that the justices had made two errors.
First, the chairman had already visited the scene himself, to have a
private view. This, the court said, 'was not to be encouraged', for,
although magistrates will have a general knowledge of their area, a
specific view without the parties 'is to be deplored'. Upon the more
general question of the defendant's right to be present at the view, the
court held that 'a view is part of a criminal trial': cf RvKamarat
[1856]
AC 256.
The
defendant's absence, however, does not invalidate the trial,
for the defendant may express a wish not to be present, in which case
the court may excuse his absence, as it may do in relation to any other
part of the trial. The court held none-the-less that it was important that
the defendant be present, if he so wish, for he alone may be able to
point out some
error
or omission (to his adviser or, if they allow it, to
the bench). In the present case, his exclusion was held to be a material
irregularity.
Objection was also taken to the travel arrangements, in that, on the
way to the scene, the prosecutor travelled in the same car as the
magistrates and their clerk, and on the way back he travelled with the
magistrates alone. Applying the 'reasonable bystander' test, the court
held that this was 'very unfortunate' and 'should never have happened'.
The
fact that the defendant's solicitor had not objected did not indicate
that the 'reasonable bystander' would have thought it right.
The
court concluded that, although no actual bias was established (or
indeed alleged), the two objections, singly and cumulatively, meant that
1
Journal
of
Criminal Law
it could not be said that no injustice had arisen.
It
may be added that the
same conclusion would appear to be inevitable, even applying the test
which, since RvGough [1992] 4 All
ER
481, now must be applied, in
the place of the 'reasonable bystander' test, namely the 'real danger' test.
THIRD
PARTY'S OFFER TO PAY COMPENSATION
R v Mantoura
In what circumstances should acourt when dealing with an offender
consider accepting an undertaking from a third party to pay compensation
instead of, or in support of, a compensation
order
against the offender?
In R v Mantoura (1993) 157
lP
317, that question arose in the following
circumstances. Adefendant pleaded guilty to two offences of theft, which
he and the legal executive of a firm of solicitors had committed by
stealing some £45,000 which the victim had entrusted to a firm of brokers
for investment.
The
defendant had no assets and the trial judge, being
aware of this, made no compensation
order
against him.
The
defendant's
counsel thereupon informed the judge
that
the defendant's father was
willing to pay the sum of £25,000 (which was the amount which the
defendant had received).
The
father, produced as a witness, informed
the judge that he was willing to give an undertaking to pay
that
amount.
The
judge stated
that
he was willing to, and did, take into account the
attitude of the family, but he declined (owing to the defendant's
impecuniosity) to make acompensation order, saying
that
he left it 'as a
matter
for the lawyers', as it was
'not
amatter for the court'. In
sentencing the accused to two years' imprisonment, the judge specifically
stated that he had taken into account what the father had said and
that
it was for that reason that nine months of the sentence was suspended
(for two years). The father, who had apparently believed
that
his
payment would result in a non-custodial sentence, refused to pay, on the
ground that the judge had in effect refused his offer.
The
Attorney
General then applied for an
order
against the father for contempt of
court in respect of his breach of undertaking, which undertaking the
judge had expressly accepted in passing sentence. For the father, it was
accepted
that
ajudge may accept an undertaking from a third party to
the proceedings, but it was submitted
that
here no undertaking was
given, since the father had gone no further than saying that in certain
circumstances he would be prepared to give an undertaking. In the
alternative, it was argued that there had never been an acceptance by the
court in clear and unambiguous terms and certainly the implications of
what had been said by the judge had never been explained to the father.
In R v Inwood (1974) 60 Cr
App
R 70, it was stated by the
Court
of
Appeal that where the defendant has no means acompensation
order
should not be made on the basis of a promise made by relations to
provide the necessary funds or on the expectation
that
they would do so.
It
was said that this should never be done 'because even if such a promise
is made in good faith, it cannot be enforced against the person making
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