#14778 - Example Statement Of Facts And Grounds - BPC Judicial Review

IN THE HIGH COURT OF JUSTICE CLAIM NO

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

R (on the application of)

XXX

Claimant

- and –

XXX

Defendant

STATEMENT OF FACTS AND GROUNDS FOR REVIEW

INTRODUCTION

1. The Claimant seeks to challenge the Defendants decision to XXX

Factual background

2. XXX

The correspondences

3. By a letter dated 7^th June 2016, the Claimants solicitor requested for the Gladbury Magistrates Court to exercise their discretion under section 142(2) of the Magistrates Court Act 1980 to re-open the case.

4. This request was denied by a letter dated 11^th July 2016 which states:

Quote

5. By a letter dated 25^th July 2016, the Claimants solicitor requested for further consideration on the matter. It states, inter alia:

Quote

6. In a letter dated 12^th August 2016, the Defendant rejected the Claimants solicitor contention and attached an extract of the XXX. The XXX discloses the reasons that the Magistrates proceeded in the absence of the Defendant during the trial.

7. The XXX states:

Quote

8. The XXX further states:

Quote

LEGAL FRAMEWORK

(a) Proceed in Absence

1. Statute

9. Under s11 of the Magistrates Act 1980 (“”MA 1980), the Defendant has power to proceed in the Claimants absence “unless it appears to the court to be contrary to the interests of justice to do so.”

10. s11 (2A) MA 1980 provides that the Defendant “shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.”

11. s11 (4) MA 1980 states that “the court shall not in a person's absence impose any disqualification on him”. The Defendant has to grant an adjournment before passing this sentence.

2. Criminal Procedure Rule

15. Rule 1.1 states:

(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes—

1. acquitting the innocent and convicting the guilty;

2. dealing with the prosecution and the defence fairly;

3. recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

4. respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

5. dealing with the case efficiently and expeditiously;

6. ensuring that appropriate information is available to the court when bail and sentence are considered; and

7. dealing with the case in ways that take into account—

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases.

12. Under rule 24.11, the Defendant “must adjourn the hearing if the defendant is absent” when the Defendant “considers imposing a disqualification (unless it has already adjourned the hearing to give the defendant an opportunity to attend)” (rule 24.11 (10)(a)(ii)).

13. Rule 24.12 states that the general rule that Defendant must proceed with the trial as if the accused were present and had pleaded not guilty “subject also to rule 24.11(10)(a) (restrictions on passing sentence in the defendant's absence).” (rule 24.11 (3)(d))

3. Case law

14. R v Hayward; R v Jones; R v Purvis [2001] EWCA Crm 168

Rose LJ held, inter alia:

[22] In our judgment, in the light of the submissions which we have heard and the English and European authorities to which we have referred, the principles which should guide the English courts in relation to the trial of a defendant in his absence are these:

1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

1. the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

2. whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

3. the likely length of such an adjournment;

4. whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

5. whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

6. the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

7. the risk of the jury reaching an improper conclusion about the absence of the defendant;

8. the seriousness of the offence, which affects defendant, victim and public;

9. the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

10. the effect of delay on the memories of witnesses;

11. where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

[Emphasis added]

15. R v Jones [2002] UKHL 5

Lord Bingham of Cornwall held, inter alia:

6 For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant (as in R v Abrahams (1895) 21 VLR 343 and R v Howson (1981) 74 CrAppR 172); or misbehaviour (as in R v Berry (1897) 104 LT Jo 110 and R v Browne (1906) 70 JP 472); or because the defendant has voluntarily absconded (as in R v Jones (Robert) (No 2) [1972] 1 WLR 887 and R v Shaw (Elvis) [1980] 1 WLR 1526). In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well-established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.

13. The European Court of Human Rights and the Commission have repeatedly made clear that it regards the appearance of a criminal defendant at his trial as a matter of capital importance: see, for example, Poitrimol v France (1993) 18 EHRR 130, at p 146, para 35; Pelladoah v Netherlands (1994) 19 EHRR 81, at p 94, para 40; Lala v Netherlands (1994) 18 EHRR 586, at p 597, para 33. That court has also laid down

1. That a fair hearing requires a defendant to be notified of the proceedings against him: Colozza v Italy (1985) 7 EHRR 516, at pp 523-524, para 28; Brozicek v Italy (1989) 12 EHRR 371;

2. That a person should as a general principle be entitled to be present at his trial: Ekbatani v Sweden (1988) 13 EHRR 504, at p 509, para 25;

3. That a defendant in a criminal trial should have the opportunity to present his arguments adequately and participate effectively: Ensslin, Baader and Raspe v Germany (1978) 14 DR 64, at p 115; Stanford v United Kingdom (1994) Series A/282-A;

4. That a defendant should be entitled to be represented by counsel at trial and on appeal, whether or not he is present or has previously absconded:...