R (Rathor) v Southampton Magistrates Court [2018] EWHC 3278 (Admin)
An application for judicial review of two decisions, a refusal to adjourn a trial and a refusal to set aside that decision.
Mr Rathor denied an allegation of common assault; he attended for trial on three occasions when it was adjourned for reasons not to do with him. On the fourth trial date he had suspected food poisoning and supplied a certificate, it did not, however, state he was unfit to attend Court. Information was provided via his advocate that he was in bed, could not move out of the house and did not feel well enough to attend Court. The application to adjourn was refused even though the further delay would be relatively short.
The advocate’s note did not indicate that the key principles in Jones [2001] EWCA Crim 168 had been considered, but the Magistrates Court’s response to the JR did state that the DJ had regard to the Jones checklist. The High Court remarked the problem was that one did not know how he had regard to it and that made it difficult to be satisfied that the matter had been approached in the way the Court was obliged to under section 11 MCA 1980.
Held: the DJ did not approach his discretion under s11 in the manner that was dictated by Jones, there was no explanation as to why it was felt that getting the case on fast trumped the inability of the defendant to give evidence in his own defence. It seems it was considered that the default position was that the case should go forward in the defendant’s absence, “reliance on s11(1)(b) as a statutory presumption that the court should proceed in the absence of a defendant, to the detriment of the terms of ss2A of the same Act, is an error of law…This decision was infected so much by an error of law that in consequence this court must quash it”.
Although not strictly necessary the court also considered the second challenge and said there was force in that too. The question under s142 is “whether the interests of justice would be served by acceding to the application to rescind the earlier order and direct a re-hearing.” The proposition that s142 only runs where the Magistrates have made a mistake is a plain error, the jurisdiction is broader. The fresh evidence, in this case, established that Mr Rathor’s non-attendance was involuntary. The DJ should have asked himself whether he would have reached the same conclusion at the earlier hearing had he had that information about the defendant’s state of health at the time, the answer to that was plainly no. It was not the defendant’s fault that the information was not available at the time so the power under s142 must be exercisable.
The matter remitted to the Magistrates’ Court.