13th November, 2023

New guidance on striking out appeals to the Crown Court Lawal v Cambridge Crown Court [2023] EWHC 466 (Admin)

Emma Clarke discusses Lawal v Cambridge Crown Court [2023] EWHC 466 (Admin) in which the High Court confirmed the power of the Crown Court to strike out a case from the list where an unrepresented appellant fails to attend.

For some time, there has been lack of clarity in the law in cases where an unrepresented appellant fails to attend an appeal hearing in the Crown Court. The decision in Lawal clarifies the courts power to ‘strike out’ a case from the list without the need to hear any evidence in such circumstances.

The claimant applied for judicial review of a decision from the Crown Court at Cambridge to proceed in his absence and dismiss an appeal without hearing any evidence. On the date of the appeal listing, the appellant was not present when the case was called on in the morning. Having allowed some time, the court proceeded in his absence and dismissed the appeal without hearing evidence. The appellant was simply running late that day, and later applied for the matter to be re-opened. The court considered there was no power to re-open the case and did not do so.

Prior to this matter came authorities giving courts guidance on how to manage appeal listings where parties do not attend.

In Guildford Crown Court ex p. Brewer (1988) 87 Cr. App. R 256 the court determined that where an appellant fails to attend or to give instructions, but is represented, the appeal should proceed in their absence, but in the presence of counsel. Such failure to attend does not amount to an abandonment of the appeal. Later confirmed in Podmore v DPP [1997] C.O.D 80, that where an appellant is represented, the court has no jurisdiction to dismiss the appeal without first hearing evidence.

Similarly, and rather more conclusively, in R v Croydon Crown Court ex p. Clair (1986) 83 Cr. App. R 202 the court determined that, where neither party is represented, the court should dismiss the appeal, and only allow it to be restore with consent from both parties and a strong satisfactory statement on behalf of the appellant, supported by affidavit, or the oath of witnesses present, accounting for their absence.

The matter was later discussed once more in R v Chelmsford Crown Court [2003] EWHC 73 Admin, the guidance only seemed to serve to follow that which came before it; if an appellant fails to attend, but is represented, then the court should hear the appeal.

That leaves the court in a situation where an appeal could not be treated as abandoned simply by an appellant failing to attend, or failing to instruct representation. The only conclusive decision on the matter is that which came from Chelmsford, stating that the court may dismiss an appeal where neither party is represented.

In practical circumstances, if an appellant fails to attend or instruct representation, but a respondent is represented. The court is left in circumstances where an appeal must be heard. Unless, of course, representation for the respondent seeks to absent themselves to circumvent the matter.

Those issues were clarified in Lawal. The Court confirmed that a Crown Court has the power to ‘strike out’ a case from the list where an unrepresented appellant failed to attend, adding that the Court was not required to hear evidence before dismissing an appeal.

The decision however comes with a warning for any judge exercising this discretion, pronouncing that the court must exercise its discretion to adjourn a hearing so that enquiries can be made as to an appellant’s non-attendance. The Court held that, instead of immediately striking an appeal from the list, the more reasonable course of action would have been for the court to adjourn the matter, at the very least until the afternoon, to allow the appellant to arrive at court and explain any reason for being late. Failure to do so may risk any decision to dismiss to be regarded as unreasonable.

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