James Killick (Apellant) v West London Magistrates' Court (Rspondent) Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,Mrs Justice Sharp |
| Judgment Date | 06 December 2012 |
| Neutral Citation | [2012] EWHC 3864 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 December 2012 |
| Docket Number | CO/4983/2012 |
[2012] EWHC 3864 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
Mrs Justice Sharp
CO/4983/2012
Simon Gledhill (instructed by HP Gower Solicitors) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
I will ask Sharp J to give the first judgment.
The claimant, James Killick, applies for an order quashing his convictions at the West London Magistrates' Court on 16 February 2012 for two offences: plying for hire without a licence contrary to section 7 of the Metropolitan Public Carriage Act 1869; and using a motor vehicle without third party insurance contrary to section 143 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988.
The claimant was arrested for these offences on 28 October 2011 in the vicinity of Paddington Railway Station. He was interviewed and charged the following day and released on bail pending a hearing on 8 November.
He appeared unrepresented at West London Magistrates' Court on 8 November and entered a not guilty plea. A trial date was set for 16 February 2012.
On 9 February 2012 an application was made to vacate the trial date for reasons which are unconnected with this application and which were resolved, so the trial remained listed.
On 13 February 2012 the claimant's then solicitors, MAJ Law, wrote to the Magistrates' Court asking that the trial date be vacated for three months so that the claimant could receive medical treatment. The solicitors attached to that letter a medical certificate dated 10 February 2012, written in manuscript by the claimant's GP, Dr Chaudhury. It said that the claimant had been suffering from severe depression and anxiety over the last two years, identified his current medication and concluded: "Currently he is not in a fit mental state to attend court."
The letter from the solicitors said: "We are particularly concerned that the medical condition relates to mental health and that our client has been referred to a psychiatrist."
The case was listed for an application to adjourn on 15 February. The claimant's solicitors, privately instructed, did not attend, to save costs. The application was opposed and it was refused by the District Judge. No reasons are recorded on the Magistrates' Court file for the refusal. The case therefore came on for trial on 16 February. The claimant did not attend on this occasion either, but he was represented. The Crown applied for the trial to proceed in the claimant's absence, and that application was opposed.
The magistrates found no reason to go behind the decision made on 15 February and accordingly permitted the case to continue. The claimant's representative then withdrew and the trial continued with the claimant neither present nor represented. He was duly convicted of the charges to which I have already referred, and sentencing was adjourned to 23 February 2012.
On 23 February the claimant's representatives attended again and provided the court with a report dated 21 February 2012 from a Consultant in Forensic Psychiatry, approved under section 12(2) of the Mental Health Act, Dr Rutherford. His conclusion was that the claimant had a severe schizo-affective psychotic illness which was not fully responding to his current regime. He said the claimant was suffering from paranoid delusions and command auditory hallucinations, which Dr Rutherford specified, and, in addition, depression. He said the claimant's illness was stress related and had recurred since his arrest in October 2011, and that the stress of the court case was exacerbating his condition.
Dr Rutherford said that the claimant needed urgent assessment by the community mental health team and to have his medication reviewed. He also needed to be reviewed regularly until his condition was stable. In Dr Rutherford's opinion, the claimant was currently unfit to plead and was not fit to attend court. He went on to say he would be grateful if the court could adjourn for a period of 6 months so the claimant could receive appropriate treatment and recover sufficiently to enable him to regain his fitness and attend court.
In the light of the report an application was made to re-open the claimant's conviction in his absence, pursuant to section 142 of the Magistrates' Courts Act 1980. That application was made to the District Judge. The District Judge refused the application to re-open the conviction or to adjourn sentence, and sentenced the claimant in his absence to a fine of £320 for plying for hire and 6 months disqualification for driving without insurance.
The District Judge, in evidence placed before the court, cannot now recall the application that was made, nor the reasons he gave for refusing it, save to say that he rejected the conclusions of the report, and in the event proceeded to sentence in the claimant's absence.
The claimant's solicitors note that the District Judge said: "It was positively wrong to accept the report given its inconsistency and inadequacy."
Sections 11(1)(b) and (2A) of the Magistrates' Courts Act 1980 provide, in summary, that the court may proceed in the absence of a defendant unless it appears to be contrary to the interests of justice to do so, subject to this: that it shall not do so if it considers there is an acceptable reason for his failure to attend. Section 142(1) of that Act provides that a magistrates' court may vary or rescind a sentence or order otherwise imposed if it appears to the court to be in the interests of justice for it to do so.
Further guidance is given by Practice Direction I.13 of the Criminal Procedure Rules, which refer to the express statutory power in the case of proceedings before magistrates to hear trials in the defendant's absence, and to the fact that the court has a discretion whether the trial should take place in a defendant's absence. It is noted at I.13.18 that the court must exercise its discretion to proceed in the absence of the defendant with the utmost care and caution, and I.13.19 refers specifically to the guidance given by...
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