Mon, 07 Jan 2019
R (Rathor) v Southampton Magistrates’ Court  EWHC 3278 (Admin); Admin Court, 9th October 2018
David represented the Claimant in both the permission and substantive hearings in this case where the Claimant had been convicted of assault in his absence. The District Judge in the Magistrates’ Court had proceeded with the trial despite the Claimant (who was the Defendant in the Magistrates’ Court case) reporting he had food poisoning on the day of trial and despite the fact that he had attended three previous listings of the trial that were adjourned. The Judge, some days later, also refused to reopen the conviction when further medical evidence was provided.
David successfully argued, before Mrs Justice Andrews sitting in the Administrative Court at Bristol Civil and Family Justice Centre, that the District Judge had erred in law two material ways.
Firstly, the District Judge had failed to properly consider the test on proceeding in absence as set out in s.11 of the Magistrates’ Courts Act 1980. Whilst the District Judge had properly noted that there is a presumption of proceeding in absence, as per s.11(1)(b) of the 1980 Act, the Judge had failed to note that the presumption was qualified by the provisions of s.11(2A) of the 1980 Act, which states that the Court must not proceed if there is an acceptable reason for the non-attendance. Thus, by considering the presumption to be a default position (contrary to R (Evans) v East Lancashire Magistrates Court  EWHC 2108 (Admin)) and by failing to consider the reasons given for non-attendance and decide whether the failure to attend was “designed to frustrate the process” (contrary to R v Jones (Anthony)  EWCA Crim 168 and M v Burnley, Pendle and Rossendale Magistrates Court  EWHC 2874 (Admin)) the decision to proceed in absence was unlawful.
Secondly, the District Judge had failed to properly apply the test on re-opening cases under s.142 of the 1980 Act. The Judge had determined that the power may only be used as a ‘slip rule’ and operated only to correct a mistake. The Judge had, in error, followed the reasoning in Houston v Director of Public Prosecutions  EWHC 4144 (Admin) as authority for this proposition. Mrs Justice Andrews expressed caution on relying on Houston in the circumstances of the present case as this ignored the line of reasoning set out in a number of cases, most prominently R v Ealing Magistrates Court ex parte Sahota  162 JP 73 and R (Manorgale) Ltd v Thames Magistrates Court  EWHC 535 Admin. Those cases were authority for the proposition that the power under s.142 of the 1980 Act is wider than a slip rule, and that the Court must consider the interests of justice in reopening a case. Mrs Justice Andrews noted that the narrow reading in Houston and the cases referred to therein all arose out of scenarios where there was little prospect of reopening, as opposed to the cases of Sahota and the present case where there were good prospects due to good reasons in the form of medical evidence for non-attendance at trial having been evidenced.
The Claimant’s conviction was quashed and the case remitted to the Magistrates’ Court.
A link to the judgment can be found here: http://www.bailii.org/ew/cases/EWHC/Admin/2018/3278.html
David Gardner is a member of the following groups at No5: Public Law and Court of Protection. To view his profiles please visit https://www.no5.com/barristers/barrister-details/505-david-gardner/