Junior Lawal v The Crown Court at Cambridge
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cutts DBE |
| Judgment Date | 03 March 2023 |
| Neutral Citation | [2023] EWHC 466 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO4982022 |
and
[2023] EWHC 466 (Admin)
Mrs Justice Cutts DBE
Case No: CO4982022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Junior Lawal (a Litigant in Person) for the Claimant
Louis Mably KC and Lucy Organ (instructed by The CPS) for the Interested Party
Hearing date: 21st February 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant in this case applies for judicial review of the decision of the Crown Court at Cambridge dated 15 November 2021 to proceed in his absence and dismiss his appeal against conviction without hearing evidence. He appeared in person at the hearing to determine this application.
The appeal was listed in the Crown Court at Cambridge (sitting at Peterborough) on 15 November 2021 before HHJ Enright sitting with two magistrates. The Claimant was not present when the case was called on at 10 AM as he was running late. He was unrepresented. Having allowed some further time the court decided to proceed with the appeal in the Claimant's absence rather than adjourn for him to arrive and dismissed the appeal without hearing evidence.
The Claimant sought legal representation and asked for the case to be re-listed for an application to re-open his appeal. The hearing was listed on 13 December 2021 before HHJ Enright. The Claimant through his counsel applied for the case to be re-opened under the slip rule provided for in s.142 of the Magistrates Courts Act 1980.. Although there is no transcript of that hearing it is understood that the judge considered that there was no power under the this provision to re-open the case and did not so order.
The issues
It is common ground that this claim raises three issues:
i) The first concerns the power of the Crown Court on an appeal against conviction from the Magistrates Court when the appellant fails to attend and is unrepresented. The question is whether the court has power to dismiss the appeal or, put differently, strike it from the list or whether the court, if it decides not to adjourn, must hear evidence and decide the substantive appeal;
ii) If it does have such power, secondly whether the Crown Court in this case exercised its power to dismiss the appeal reasonably or whether the only reasonable course of action was for the court to adjourn the hearing; and
iii) Thirdly, it being conceded by the Interested Party that the court has the jurisdiction following the dismissal of an appeal to restore it to the list, whether any such application would fail on its merits.
The facts
It is necessary briefly to refer to the background although the facts are not themselves of major importance.
The Claimant was said to have been involved in a driving incident at approximately 9.00 AM on 23 December 2019. It was a damage only collision which occurred on the A1198 at the roundabout junction with the A14. Three vehicles were involved. One, a hired black Hyundai, was said to have been driven by the Claimant. The driver of the Hyundai failed to stop and failed to report the incident. The Claimant returned the 172 notice admitting he was the driver. He was summoned to the Magistrates Court in relation to offences of driving without due care and attention, failing to stop and failing to report to which he entered not guilty pleas on 2 November 2020.
Chronology
As the dates reveal the listing of the Claimant's trial at the Magistrates Court was during the time of the pandemic which caused considerable delay. The Claimant has said that the trial was listed eight times and adjourned before it was finally heard on 24 May 2021. It should be noted that the Memorandum of Conviction records the conviction on 7 May 2021. Whichever the date, the offences were proved in absence as the Claimant did not attend the hearing. In summary, in total he was fined, disqualified from driving for nine months and ordered to pay costs. The Claimant has said that he was confused about the hearing date and attended at the court the day after he was convicted of the offences.
On 25 May 2021 the Claimant submitted a notice of appeal to the Crown Court.
By a Notice of Hearing dated 8 November 2021 the Claimant was told that his appeal would be heard at the Crown Court at Peterborough, with the address provided, on 15 November 2021. After notification of the date, the Notice contains bullet pointed paragraphs under the heading “Important information”. The first of these reads as follows:
“If you are not legally represented, you are advised to telephone the court on [number given] during the afternoon before the hearing of the appeal for the confirmation of the time your case will be heard.”
The hearing on 15 November 2021
The case was listed at Cambridge Crown Court sitting at Peterborough at 10 AM on Monday 15 November and called on at that time. The Claimant was not present. A transcript of the hearing reveals that the clerk of the court contacted the claimant by telephone. She told the judge that the Claimant was being brought to the court by a friend. They were travelling from London and were currently in Royston. The Claimant told her that he had received the hearing notice for ten o'clock that morning but said that, following the bulleted paragraph to which I have already referred at [9], he had tried to call the number thereon on the Friday afternoon. The clerk told the judge that she believed that there had been problems with the telephones at Cambridge on Friday so that nobody answered his calls. She told the judge that the Claimant had tried to call the County Court number at Peterborough on the morning of the 15 November but did not get through which would be correct as that automatically went through to a call centre.
The judge asked counsel for the prosecution what he wanted to say. Counsel confirmed that the appeal had last had a directions hearing on 9 July 2021. He asked that the appeal be dismissed at that stage as he had two witnesses, one at court and the other attending by live link from Worcester Crown Court. Counsel pointed out to the judge that the Claimant had failed to attend on two occasions at the Magistrates Court, on 26 February 2021 and again on the day of his trial. The judge retired with the magistrates to consider the matter.
The court reconvened at 11.40. The Claimant was still not at court. On enquiry by the judge the clerk said that there had been no further information from the Claimant but also observed that there was nowhere that he could give that information as he could not ring anyone. At the request of the court the clerk contacted the Claimant again. He informed her that he was at Alconbury.
After a short adjournment the court reconvened at 11.46. The judge said:
“We're not prepared to adjourn further. It seems to us the appropriate course of action is to dismiss the appeal and we do so. We make no order as to costs.”
Paragraph 21 of the Acknowledgment of Service from the Interested Party sets out the prosecution advocate's note from the 15 November 2021. It records that after the first telephone call from the clerk of the court to the Claimant further enquiries revealed that the listing office had spoken to the Claimant on 3 November 2021 when there was the possibility of the matter being removed from the list. He had indicated that he wished it to remain in the list and so it did. The note further records that when the clerk made contact with the Claimant for the second time at 11.40 he indicated that he was about half an hour away.
In oral submissions the Claimant said that he arrived at the court at 12.50. He did not get past security at the door as a member of staff told him that his appeal had been heard and dismissed.
The hearing on 13 December 2021
As indicated above the Claimant sought legal advice. On 13 December 2021 his legal representative applied to the court to re-open the appeal by reference to the slip rule in s.142 Magistrates Courts Act 1980. At the hearing on that date the judge concluded that this section, which is directed to the correction of errors in sentences, gave no jurisdiction for the reinstatement of the appeal. Regrettably there is no transcript of this hearing. The Claimant in oral submissions said that the hearing was solely concerned with the jurisdictional point. At no time was he asked to explain why he was not present when his appeal was called on. In the Claimant's Grounds for Permission at paragraph 9 is stated:
“At a mention on 13 December 2021 HHJ Enright confirmed to this counsel that the appeal had been heard and not treated as abandoned.”
Issue 1 – the power of the court.
The Interested Party's submissions
Mr Mably KC, on behalf of the Interested Party, submits that when an appellant does not attend for his hearing at the Crown Court the court has three options. First it can adjourn the appeal. Second the court can decide to determine the appeal by way of a re-hearing and thereby come to a conclusion having applied the criminal burden and standard of proof. Lastly, if the appellant is absent and unrepresented, the court can strike the case from the list. If the court takes the last course, Mr Mably submits that it may then restore the case to the list if there is a very strong and satisfactory explanation for the appellant's absence.
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