Attending Court: A Question of Priorities

You'd be amazed how frequently defendants fail to attend when their cases are being heard at the Magistrates' Court.

If the defendant is accused of a summary offence, and the prosecution has served all the necessary paperwork on the defence, then it is often possible to proceed with the case in their absence. It is not appropriate to proceed in the absence of the defendant in cases where the community or custody threshold has been passed, or where any ancillary order (e.g. driving disqualification) is going to be imposed upon them.

In the case of a defendant accused of an either-way or indictable offence, it is not possible to proceed in their absence. Either an adjournment or arrest warrant, depending on the circumstances, is needed to secure the defendant's attendance on a subsequent occasion.

Today I thought I would summarise the outcome of three cases where the defendant didn't attend, even though it would have been well within their interests to do so.

Case 1: Mr Smith the shop thief:

A few months ago, prior to the current coronavirus outbreak, I was sitting in the GAP (guilty anticipated plea) court and one of our regulars, Mr Smith, was on the list charged with shop theft. The proceedings against Mr Smith had been initiated by way of a police charge and he was bailed to appear before the court that morning.

When we took our seats at 10 am his solicitor, Mr Grey, a face well known to the bench, rose to his feet with the words: "Your Worships, my client Mr Smith has been on the phone to me. He overslept this morning and missed the bus to court. He should now be on the next bus, but he tells me he is going to be late. Can you please delay his case until his arrival later this morning?"

So regular were Mr Smith's visits to the court and adjoining police station, that the bus timetable should have been indelibly etched to his memory, but alas, with a bustling list of work for the morning, and the prosecutor expressing no opposition, we were happy to accommodate his later arrival. We are usually quite reasonable about such matters, as long as the list can easily be juggled and no inconvenience is caused.

The clock was now rapidly approaching 12 noon and it was apparent that Mr Smith, despite living only a short bus journey away, was nowhere to be seen. Mr Grey had momentarily bobbed back into court and we took the opportunity to enquire about Mr Smith's whereabouts.

"I'll just nip outside to call and find out where he is", came the reply.

A few moments later a sheepish looking Mr Grey reappeared at the back of the court.

"Your Worships, I managed to speak to Mr Smith who tells me that he had to go to his sister's house to sort something out", began a despondent Mr Grey, seemingly resigned to his client's fate.

"He now won't be able to get here until this afternoon, if you are minded to deal with his case then."

By this time Mr Smith's fate was already sealed, but looking towards the prosecutor for approval - "Miss Bennett, do you have anything to say?"

The prosecutor replied: "Well sir, I think the court has already been very reasonable in giving Mr Smith an extra couple of hours. He was bailed to appear at 10 am and there is no reasonable excuse for why he hasn't. I apply for a warrant without bail."

Agreed. A warrant without bail issued for the arrest of Mr Smith.

A night in the cells and the addition of Bail Act offences to his charge sheet will no doubt help focus Mr Smith's mind on the importance of buying an alarm clock and attending court on time.

Case 2: Miss Brown the driver who failed to stop:

Miss Brown was driving through the area served by our court, when she accidentally clipped a motorcyclist who had poorly positioned his bike at a junction. The motorcyclist had actually stopped his bike beyond the Give Way lines, which meant it was protruding well out into carriageway Miss Brown was driving on.

The collision took place in a rural area in the late evening, so it would have been dark given the time of year. The motorcyclist was thrown off his bike and suffered broken wrist as he tried to break his heavy fall onto the road surface. It was a rather complicated fracture and despite the passage of time the motorcyclist still doesn't have the full range of movement he did previously.

Given the circumstances there was little doubt that the motorcyclist was at fault. Had Miss Brown stopped and called the police then she would have faced no legal consequences, however, for some inexplicable reason, despite incurring significant damage to the front nearside wing of car, she just kept driving.

The police caught up with Miss Brown the following day and she made full and frank admissions, saying that she kept driving because she was scared of the motorcyclist's reaction had she stopped.

Miss Brown had been due in the GAP court this particular morning, but did not appear in person. Instead her solicitor sent a letter to the court office a few days earlier, which the legal advisor read aloud in court. It was the strangest solicitor's letter I have ever heard, being quite cold and condescending in tone and legally inaccurate in several of its assertions.

The letter said that given the distance involved Miss Brown would not be attending the hearing. She didn't want to incur the time and expense of having to attend court and stay overnight in a hotel. Miss Brown fully admitted the offence as described by the prosecution. As it was a summary only matter, she asked for the court to proceed with it in her absence "as was her right".

The letter then wrongly proceeded to tell us that "having consulted the relevant sentencing guidelines, the court will want to deal with this matter by way of a financial penalty."

The offence in this case was in no way commensurate with a financial penalty. Miss Brown had knocked this man off his bike, thereby causing him significant injury. For all she knew he could have been left for dead in the middle of the live carriageway, yet she drove away without a second thought about his welfare. By her own admission she knew exactly what had happened at the time of the collision.

We placed the offence at Category 1, which attracted a starting point of a high level community order and a range right up to 26 weeks' custody. Had she not received an immediate disqualification, Miss Brown's licence would have been endorsed with at least 9 penalty points. As any sentence imposed by the court would definitely require input from the National Probation Service, there was no way we were prepared to proceed without Miss Brown being there.

The prosecution requested an adjournment for a fortnight, so that Miss Brown could be instructed to attend court in person with the warning that a warrant would be issued for her arrest if she did not.

Case 3: Mr Jones the careless driver:

Mr Jones was driving along a residential street when he rear-ended a car parked at the roadside. The weather, road conditions and visibility were good.

During his interview with the police, Mr Jones made full and frank admissions. He said that the reflection of bright sunlight had momentarily dazzled him and caused him to collide with the back of the parked car. He admitted blame and acknowledged that he wasn't driving carefully enough.

Mr Jones' case was listed in the GAP court on this particular morning, but he was nowhere to be seen. It transpired that Mr Jones, who was unrepresented, had emailed the court the previous day to say that he was away on holiday and would not be able to attend. He requested an adjournment for a fortnight. 

According to the prosecutor, Mr Jones had been informed of the hearing date several months ago. He had been given more than enough notice, so it would appear that he has booked his holiday knowing full well there was a clash of dates. As all the necessary documents had been served, the prosecutor applied to proceed with the case in Mr Jones' absence. The prosecutor highlighted that Mr Jones had a clean driving licence, so was not likely to face disqualification for this offence.

The court agreed to proceed in the absence of Mr Jones. The prosecutor read out the facts of the case, as summarised above, and the bench duly found the case against him proved.

On his return from holiday Mr Jones will learn that he was been fined £440 (Band B) and been ordered to pay £85 towards prosecution costs and £44 victim surcharge. His licence was also endorsed with 6 penalty points. The balance of £569 has to be paid in full within 28 days and a collection order was made.

Had Mr Jones attended court then he could have entered a guilty plea, which would have resulted in a discount to his fine. Enquiries could have been made about his financial circumstances, which would probably have resulted in a further reduction to his fine. He would also have been able to make payment arrangements with the court, instead of having to find the full amount within 28 days.