Evans v Director of Public Prosecutions [2017] EWHC 3773 (Admin)

[2017] EWHC 3773 (Admin)

Case No CO/590/2017

Venue IN THE LEEDS ADMINISTRATIVE COURT

Court Room No. 7

The Courthouse

1 Oxford Row

Venue Leeds

West Yorkshire

LS1 3BG

Date Monday, 20 th November 2017

Before

THE HONOURABLE MR JUSTICE KING

B E T W E E N:

Between

MR EVANS

Between

DIRECTOR OF PUBLIC PROSECUTIONS

MR EVANS appeared In Person for in person

MR CHINWEZE appeared for Respondent

JUDGMENT (Approved)

[1]This comes before me in the High Court as an appeal by way of Case Stated, brought by Mr Vaughan Evans. It is an appeal from decisions of the Crown Court at Worcester, sitting in its appellant capacity, on 22 July 2016.

[2]On that occasion the Appellant did not attend the listed hearing of his appeal against his conviction by the Magistrates. That was a conviction entered on 25 April 2016 by the Magistrates at Redditch, and it was for an offence of failing to provide details of the person driving a motorcar registered in the appellant’s name on an occasion when it was alleged to have been driven in excess of the speed limit. This was contrary to Section 172 of the Road Traffic Act 1998. I understand that the details required were of a driver said to have been driving in a 40-mile an hour roadwork zone on the M5 on 28 May 2015, a motor car bearing the number plate YH12 BSO, which is the number registered to the appellant.

[3]The decisions being appealed against by way of Case Stated are: 1) Not to accede to a telephone call request made on the morning by Mr Evans, in effect to adjourn and transfer the case to Leeds or Bradford, a telephone call in which it is recorded he said he was not well enough to attend court. 2) The decision to proceed, in his absence, to the hearing of the appeal. 3) Then, inevitably, it is an appeal against the outcome of that appeal, which was one of dismissing his appeal and upholding the conviction.

[4]Mr Evans, who appears before me, as he has throughout, in person, needs to understand that this court can operate only on the basis of the facts stated in the Case Stated. I read out the Case Stated, which is dated 11 January 2017 and signed by His Honour Judge Cartwright: ‘The History before the Appeal Hearing On 25 April 2016, Mr Vaughan Evans of Keighley, West Yorkshire was convicted by the Magistrates sitting at Redditch, Worcestershire, of an offence of failure to provide details of the person driving his car on the occasion it was said to have been driven in excess of the speed limit, contrary to Section 172 of the Road Traffic Act 1988. An appeal was lodged against the conviction. By letter dated 23 May 2016 (date taken from headnote on top left of page one), the Appellant wrote requesting material which related in large measure to the question of whether a speeding offence had been committed other than the allegation that he, being the registered keeper of the vehicle YH12 BSO, had failed provide information as to the identity of the driver at the relevant time. The letter included a request that the case be transferred to Bradford or Leeds because of his health. The Appellant observed that both locations are half an hour by train from his nearest town. In the following paragraph, he noted that he always makes lengthy journeys by train and would have to commute to the Midlands by train. The letter was forwarded to the CPS and a letter sent to the Appellant indicating that the appeal would be listed at Worcester and granting his request (in a separate questionnaire) that the appeal should not be heard between 15 and 30 August 2016. The refusal of his request for transfer was on the basis that witnesses in the case were based locally and the Appellant had indicated he could travel by train to the Midlands. By email dated 29 June, the Appellant wrote to the list office asking if the case could be transferred to Bradford or Leeds on the basis that driving to Worcester would cause him difficulties. It did not suggest that he was incapable of travelling by train. A date was identified for the appeal, and on 1 July 2016, the case was listed for directions at the behest of the Respondent, because one of the police witnesses from the enforcement department was required at another court on the day scheduled for the appeal. The Appellant failed to attend the hearing on 1 July. Nobody appeared on his behalf. No telephone message was communicated to the court and no explanation for the absence of the Appellant was advanced. A direction was made that the appeal should be listed on 22 July, and the Appellant should be written to informing him of the date and advising him that the appeal would proceed on that date whether he attended or not. It was not until his telephone call on 22 July (paragraph 9 below) that any communication was made to the court in relation to his non-attendance on 1 July. He told a member of court staff that he had set off by car but turned around. The Case Stated The appeal was listed on 22 July 10am. At 9.10am the appellant telephoned the court. A note was made by the member of staff to whom he spoke. He raised the same underlying medical conditions, which had originally been raised and referred to a photograph of a letter dated 19 May, which contained details of a forthcoming outpatient appointment scheduled for 26 July. Nothing in the letter suggested that he had a medical condition which prevented him attending court on 22 July, or that he was unable to travel by public transport. Nothing in his telephone message suggested he was unable to travel by train. He specifically stated he had no medical note to cover his non-attendance at court and that telephone attendance note was provided to the court (the telephone attendance note and photograph of the hospital letter should be appended). The two prosecution witnesses were present at court and they would both have needed to travel a substantial distance should the case be transferred to Leeds or Bradford. An adjournment would have been inevitable. The prosecution asked the court to proceed in the absence of the Appellant. The court took the view there was nothing before it to indicate that the Appellant could not have travelled by train, indeed, it found that he originally stated he could. Any incontinence issues whilst driving on the motorway would not arise if travelling by train given that lavatory facilities are invariably available. The court took notice that Worcester Foregate Street railway station is a very short distance from the Crown Court. Having regard to the interest of justice and the overriding objective of the Criminal Procedure Rules the court concluded the appeal should proceed in the absence of appellant but the later judgment of the court on the merits was that the appeal should be dismissed’.

[5]The question on which the opinion of the High Court is sought is as follows: on the material before the court, should the application for the transfer of the case to Bradford or Leeds (with an inevitable adjournment) have been granted on 22 July 2016?

[6]Before proceeding to give my conclusions, I should read out verbatim precisely what was in the material parts of two documents: that is the letter referred to in the Case Stated sent to the court on 23 May 2016, and secondly, the telephone call note made on the morning of 22 July 2016.

[7]As the Case Stated indicates, that letter of 23 May in part deals with requests for material relating to the question of whether a speeding offence had been committed. It also relates to the policies of West Mercia Police regarding tracking their mail to people in the present circumstance and proof was sought of postage of letters allegedly sent to him regarding the original allegation.

[8]It relates in many ways to matters with which this court is not concerned, namely the merits of any defence to the offence upon which he has been convinced, although I should record that Mr Evans has told me today that he did receive the letter requesting details of the driver on the occasion identified in the letter, of the car bearing the number registered to him. His position was it certainly was not him. It could have been a member of his large family, but there again it could have been somebody who had taken his car without his consent or even cloned the vehicle. However, the relevant part of that letter for present purposes is this section: ‘I respectfully request that the court case be heard in Bradford or Leeds because of my health. Both locations are half an hour train journey away from my nearest town. I suffer from ulcerative colitis and I’m often ill with symptoms that include incontinence. For this reason, I always make any lengthy journeys by train and would have to commute by train to the Midlands. I have also recently had open-heart surgery and stress should be avoided. Stress tends to trigger the colitis flares too, I’m afraid’.

[9]The attendance note of the telephone call reads as follows. It is timed at 9.10am on 22 July. ‘Telephone call received from Mr Vaughan Evans to say he is not well enough to attend. Suffers with ulcerative colitis for the last 8 years, incontinence. Has had a quadruple bypass operation and does not drive very much. On the last occasion listed, got as far as Rochdale, and had to turn back, just can’t drive the distance. Mr Vaughan has previously asked for the appeal to be heard nearer his home address. No medical note to cover today but on Tuesday sent a photograph of medical records FAO: of Miss Kusa[?] at CPS. Re: Heart Surgery in October has medical appointment with gastro specialist next Tuesday. Advise Mr Vaughan that the judge had directed on 1 July 16, the appeal would go ahead in his absence and he said he is not well enough to come to court’.

[10]Mr Evans has provided me with a lot more information than he ever provided in the communications I have identified to the court prior to the decisions of 22 July 2016 of which he makes complaint. He has gone into considerable detail with me as to why after his heart bypass operation it was not remotely possible for him to go to Worcester. He has given detail of why it would be quite impossible to him to have attended by train because it would require at least at least four changes of train. He, in his grounds of appeal dated 17 January 2017, says: ‘A return to Redditch initially and Worcester latterly would mean six hour and 600-mile round trip starting out very early. By rail, even if I had been able, would have meant four station changes standing possibly for hours and still not get me to court on time. Returning home the same day wouldn’t even have been possible’.

[11]Again, in those grounds he gives detail, which was never laid before the court either on 1 July when he did not attend the direction hearing or even in his telephone call of 22 July. It reads as follow: ‘On 1 July 2016, we attempted to travel to Worcester by car. We only got as far as Rochdale 40 miles into the journey and had to return home due to incontinence and pains in the chest. I spent the next three days in bed and was ill for weeks after including 22 July’.

[12]I have every sympathy with Mr Evans as an individual but I repeat, I have to reach my conclusions on the basis of the material and facts stated in the case stated. My conclusions are as follows.

[13]As regards the decision not to transfer the case, his appeal, from Worcester to Leeds or Bradford nearer his home, this was a decision made first in response to the letter of 23 May and the email of 29 June but inferentially it was made again following receipt of the telephone call on 22 July. The court, that is the Crown Court, undoubtedly had a discretion as to transfer. The skeleton argument of the Respondent sets out in paragraph 10 the contents of the practice direction relating to decisions as to transfer. It is paragraph IV of the Practice Direction (Crown Court: Classification and Allocation of Business

[2015] 1 WLR 2215

[14]This court can only interfere with this decision of the Crown Court if the Crown Court has made a decision on transfer, which is either wrong in law or excess of jurisdiction; see Section 28(1) of the Senior Courts Act 1981. The decision would only be wrong in law if it was a decision to which no reasonable court could have come on the material before it. There is no suggestion that it was made in excess of jurisdiction.

[15]Unfortunately for Mr Evans, I can see no basis on the material, which was before the court below, to conclude that it was a decision to which no reasonable court could have come. Again, sadly, from the point of view of Mr Evans, the letter of 23 May did not suggest that the appellant could not travel by train to Worcester and, indeed, suggested that he was capable of travelling by train and the court was entitled to find, as it says it did, that he had stated in that letter that he could. Mr Evans says it was a misunderstanding of what he had written but it was undoubtedly a conclusion open to the court below. The factor which operated on the court, namely that any incontinence issues while driving on the motorway would not arise if travelling by train, given that lavatory facilities are invariably available, is one to which it was entitled to have regard.

[16]On the issue of transfer, the court was also entitled to take into account that the appellant had asked for the attendance of two prosecution witnesses. Mr Evans tells me that by 22 July, he was no longer asking for them but there is no material before me to sustain this. Everything suggests that any change of mind on that issue came later when he drafted his grounds of appeal in January 2017. In that regard, I have to observe that in the letter of 23 May at subparagraph 7, Mr Evans had written, ‘I require PC Mortermans[?] and decision-maker Louise Lewis to attend trial’

[17]The telephone note of 9.10am of 22 July, again, did not record any evidence-based statement on the part of Mr Evans that he was not capable of travelling by train. The patient appointment document added little to the issue regarding transfer. What it confirmed was that he had an outpatient appointment a few days later in the gastro clinic. There are no medical notes in my papers beyond that document. Mr Evans tells me that there was other material provided but none of this is before me.

[18]I then come to what is, perhaps the more critical issue, which is whether or not it was perverse and unreasonable for the court on 22 July to proceed in the absence of Mr Evans. Mr Chinweze, on behalf of the Respondents has properly brought to my attention the principles identified in Crown Prosecution Case vPicton

[2006] EWHC 1108

as regards adjournments, but the question of an adjournment in this case on Picton principles was only relevant as an issue in the context of the application for transfer. The more critical issue is whether or not this appeal should have gone ahead in his absence.

[19]Mr Chinweze has frankly accepted the important principle that a defendant has a general right to be present at his trial and he referred me to the well-known House of Lords decision in Regina v Jones

[2002] UKHL 5

where Lord Bingham said at paragraph 13: ‘The discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial’.

[20]In that case in the House of Lords approved of the majority of the principles to be considered before proceeding in the absence of a defendant set out by the Court of Appeal in Regina v Hayward, Jones and Purvis

[2001] Cr.App.R 11

at paragraph 22. They include: the conduct of the defendant; whether the attendance of the defendant could be secured at a later hearing; the likely length of any adjournment; the extent of the disadvantage of the defendant; the risk of a jury reaching an improper conclusion about the absence of the defendant; the general public interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates.

[21]I do not, for present purposes, include within those principles the issue of the seriousness of the offence. A minor offence is as important to the defendant as a more serious one.

[22]Helpful in the context of the issues raised in this case is the judgment of the Divisional Court, in K v West London Magistrates’ Court

[2012] EWHC 3864 (Admin)

at 171. In that case the court reiterated the basic principle that the overriding principle is the court should not proceed to hear a case in the defendant’s absence unless it is satisfied that no unfairness will result.

[23]At paragraph 17 the court set out relevant principles, I have already referred to the first. The second is in these terms:

‘The discretion to commence trial in the absence of a defendant should be exercised with the utmost care and caution. Where a defendant to a criminal charge wishes to resist it and is shown by medical evidence as being unfit to attend court to do so, either as a result of involuntary illness or incapacity it will be very rarely or if indeed ever right for the court to exercise its discretion in favour of commencing the trial’

. The third principle was this:

‘If a court asked for adjournment on medical grounds suspects the grounds to be spurious or believes they are inadequate, the court should ordinarily express its doubts and give the defendant an opportunity to resolve those doubts’

. The fourth principle was in these terms:

‘A court considering an application will need to carefully distinguish between genuine reasons for the defendant not being present and those reasons which are spuriously advanced or designed to frustrate the process. However, if the court comes to the conclusion that either of the latter is the case it should say so’

. Then the fifth principle: ‘If a conclusion is open to the court reasonably on the material before it, to the effect that an excuse given is spurious or there is a truly compelling exceptional reason for proceeding notwithstanding a good excuse for non-attendance, the court has the power to do so. This, however, will be an exceptional case’.

[24]I agree with Mr Chinweze that these principles as regards an adjournment on medical grounds are all in the context of where a defendant has shown by some evidence and specifically medical evidence, he is unfit to attend court. It is to be observed that in K the court upheld a decision of 15 February refusing to adjourn trial on the grounds that such medical evidence as there was, that of the note of the GP, was extremely weak and the judge was entitled to refuse the application to adjourn, and that it inevitably followed that the trial in that case would proceed on 16 February in the defendant’s absence if he did not attend unless further more persuasive material was placed before the court.

[25]The issue for me has become in effect whether on the material before the court on 22 July, it was open to the court to say there just was no evidence before it to support the proposition that the Appellant was not fit to attend trial. I understand Mr Evans’s point to me that a lot more material was available, and he says to me that he had indeed sent more material to the court but- Judgment interrupted by Mr Evans.

[26]I understand what Mr Evans has just said to me, namely that he did not understand that he had to put more material to the court but the court on 22 July had to look at what was then being said in that telephone call in the context of what had gone on before. What had gone on before, was that Mr Evans had sought by the letter 23 May and then by the email of 25 June for the transfer of the case out of Worcester to nearer his home on a basis, which the court had reasonably found in my judgment, was not sustainable on the basis of the material produced – that is, it was not sustainable because there was nothing to suggest that Mr Evans could not travel by train. The telephone call on 22 July was in many ways an attempt to re-open that issue but again without any material to sustain it and again, there was no medical evidence or material to suggest that Mr Evans was not capable of attending the hearing. There is substance in what Mr Chinweze says to me that on the face of the material this was simply an attempt, without producing any further material of substance, to obtain an alteration in the transfer decision.

[27]The conclusion I have reached is that it is not open to this court to say that on the material before it, the court was not entitled to come to the decision it did, namely to hear the case in the absence of the appellant. It had regard to the overriding objective of the Criminal Procedure Rules – that is that criminal cases be dealt with justly. In my judgment it is just impossible for me to say that the court below went wrong in law or reached a conclusion to which it was not entitled to come.

[28]When I bear in mind another aspect of the conduct of the appellant, as far as the court below was concerned, I am confirmed in this view. As Mr Chinweze said, on the face of the material and the Case Stated, the appellant was aware of both of the 1 and 22 July hearings. He failed to attend on either date. Prior to the application to state the case, no explanation was given to the court for the appellant’s failure to attend the directions hearing and no medical evidence has ever been produced covering the appellant’s non-attendance at either the hearing on 1 or 22 July. The only evidence that was produced was an outpatient’s appointment card for the date four days after the appeal hearing. At no stage did the appellant indicate his health issues prevented him from taking a train to court. He specifically stated in the telephone note as recorded, that he had no medical note to cover his non-attendance at court on 22 July.

[29]In all these circumstances, I must and do dismiss this appeal. What I stress to Mr Evans is that which I have already stated in the course of this judgment, namely that I have only been able to deal with this matter on the basis of that which is in the Case Stated. If there were facts and matters in the Case Stated with which he disagreed, the procedure which Mr Evans should have been followed, which he did not , was to challenge the Case Stated in its draft form, setting out the areas of disputed fact for the Crown Court to consider before finalising the Case Stated

[30]For all those reasons this appeal is dismissed. End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com