Proceeding in Absence: The ‘Default Position’ in Magistrates’ Courts? R v Rathor [2018] EWHC 3278
| Author | Natalie Wortley |
| Date | 01 April 2019 |
| DOI | 10.1177/0022018319833222 |
| Published date | 01 April 2019 |
| Subject Matter | Case Notes |
Case Note
Proceeding in Absence:
The ‘Default Position’
in Magistrates’ Courts?
R v Rathor [2018] EWHC 3278
R applied for judicial review of a District Judge’s decision to refuse an application to adjourn his trial
and to proceed in R’s absence. He also challenged the Judge’s subsequent refusal to set aside that
decision under s. 142 Magistrates’ Courts Act 1980 (MCA 1980).
R was charged with assaulting C on 9 December 2016. There were no witnesses to the all eged
incident; ‘it was one person’s word against another’s’ (at [2]). His trial was due to take place on 4
December 2017. This was the fourth time the case had been listed for trial. On the first two occasions, the
prosecution successfully applied for adjournments to allow them further time to review CCTV evidence.
The third time the trial was listed, it was adjourned due to lack of court time.
On the evening of 3 December 2017, R felt unwell and attended a walk-in centre. At court the
following day, his advocate applied for an adjournment and produced a medical certificate stating that
R had ‘suspected food poisoning’ (at [4]). The CPS opposed the application on the grounds that the case
was now almost a year old and the medical certificate did not state that R was unfit to attend court. The
Judge stood the matter down for R’s advocate to take further instructions.
The advocate returned and informed the court that he had spoken to R, who was suffering from
vomiting and diarrhoea and was unable to leave his house. Any adjournment would be relatively short, as
the trial could take place on 16 January 2018.
The defence application to adjourn was refused and R was convicted in his absence. The court’s
response to the application for judicial review stated that the Judge had regard to the principles set out in
R v Jones [2001] EWCA Crim 168 when refusing to adjourn, although it did not state ‘how he had regard
to [them], or indeed what if any, reliance he placed on the various factors that had to be balanced’ (at
[8]). The Judge did not indicate that he believed R had provided ‘spurious evidence or that his absence
was designed to frustrate the process’ (at [12]).
R had been attended by a doctor later the same day and a further medical certificate was obtained,
which made clear that R had been unfit to attend court. On 20 December 2017, the case was listed before
the same Judge, who was invited to rescind the conviction in the exercise of his powers under s. 142
MCA 1980. Relying on the decision in Houston v Director of Public Prosecutions [2015] EWHC 4144
(Admin), the Judge declined to do so on the basis that s. 142 is ‘only to be utilised as a form of slip rule to
set aside mistakes’ (at [17]).
Held, granting the application, the Judge appeared to have approached the application on the basis
that proceeding in R’s absence was the ‘default position’ (at [15]). Although a judge is not bound by a
medical certificate that does not deal with the defendant’s fitness to attend court, ‘the fact that a
certificate has been provided must be taken into account’ (at [12]). If the Judge had considered that
R’s excuse was spurious or designed to frustrate the process, he should have expressly said so; it was not
appropriate to leave such a conclusion to inference (at [11]).
The Judge was also obliged to consider whether it would be contrary to the interests of justice to
refuse an adjournment. There was no explanation ‘as to why it was felt that getting the case on fast
The Journal of Criminal Law
2019, Vol. 83(2) 121–124
ªThe Author(s) 2019
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DOI: 10.1177/0022018319833222
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