Authored by Francesca Cassidy-Taylor

On Friday 23 April, the Court of Appeal delivered judgment in R v Umerji [2021] EWCA Crim 598. This ruling clarifies the criminal procedure governing the sending of indictable only offences to the Crown Court under section 51 of the Crime and Disorder Act 1998 (“CDA 1998”). Specifically, the power of magistrates’ court to send absent defendant/s to the Crown Court for trial.

Significance of the decision

The judgment is significant as it clarifies that a magistrates’ court has the power to send an absent defendant charged with indictable only offence/s for trial in the Crown Court pursuant to section 51 CDA 1998. This is subject to the caveat that the absent defendant is legally represented at their first appearance before the magistrates.

This has long been an area of contention and one governed by inconsistent statutory interpretation. It was commonly assumed that defendants charged with indictable and/or either-way offences1 were required to be physically present at court during their first appearance to enable the court to transfer their cases. This was reflected in the CPS Guidance (‘Sending Indictable Only Cases to the Crown Court and Committal Proceedings’, dated 22 November 2007) and rule 9.2 of the Criminal Procedure Rules. The Umerji ruling undermines the CPS guidance and casts a different shade on rule 9.2 as it applies to the sending process.

The effect of the ruling is that defendants charged with indictable only offences may face trial in their absence in the Crown Court, regardless of whether they elect to attend their first appearance in the magistrates. In essence, the Court of Appeal’s clarification in Umerji establishes that the criminal process will not be stymied by an individual’s refusal to properly engage in criminal proceedings and that those charged with serious offences will not be able to evade justice on a technicality.

Summary of facts

In February 2009, the applicant, Adam Umerji, was summonsed to appear at Merseyside Magistrates’ Court to answer a single charge of conspiracy to cheat the Revenue of value added tax (an indictable only offence). The applicant did not attend the hearing as required, but was represented by junior counsel. During the hearing, the applicant’s case was sent to the Crown Court for trial under section 51 CDA 1998 and he was granted bail.

Between March and December 2009, there were several hearings at the Crown Court at which the applicant did not appear but was legally represented. He was represented by solicitors and counsel during the Crown Court proceedings until December 2010, when his legal team notified the court that it was withdrawing.

The applicant’s trial commenced in May 2011. He did not appear, and he chose not to be represented. His co-defendant, Abdullah Allad, also failed to appear but was

represented. The trial judge however ruled that the trial should proceed in their absence and the jury returned verdicts of guilty in relation to both counts on the indictment. The applicant and his co-defendant were subsequently sentenced to 12 years’ imprisonment.

The applicant and Mr Allad appealed their convictions and in March 2014, both appeals were allowed with the result that the convictions and sentences were quashed, and a re-trial was ordered. The applicant’s appeal succeeded because evidence was given by a prosecution witness which should not have been put before the jury. Shortly after the conclusion of the appeal proceedings, the applicant’s solicitors notified the Crown Prosecution Service that they were no longer acting.

Between 2013 and 2016, efforts were made to seek the extradition of the applicant and Mr Allad from the United Arab Emirates. The applicant contested the request for his extradition, and, in July 2016, the request was refused by the Emirati authorities.

The applicant’s retrial took place in late 2018. Both the applicant and Mr Allad again failed to appear, and both elected not to be legally represented. The trial judge ruled that the trial should proceed in their absence on the basis that both defendants were aware of the proceedings and had effectively waived their right to attend. The applicant was subsequently convicted for a second time and again sentenced to 12 years’ imprisonment.

Basis of appeal

The applicant sought to appeal his conviction on the basis that sections 51(1) CDA 1998 expressly requires the presence of the accused in the courtroom: “(w)here an adult appears or is brought before a magistrates' court”. When read in its statutory context, this has the effect of requiring the defendant’s physical presence. Therefore, given that the applicant did not attend his first appearance in February 2009, Merseyside Magistrates had no power to send him to the Crown Court and consequently, all the proceedings thereafter were invalid for want of jurisdiction.

The applicant’s appeal was predicated on the language of section 51 CDA 1998, together with the statutory scheme as a whole. The applicant contended that the language of the relevant statutes indicated that Parliament intended that an accused person must appear in person when their case is sent to the Crown Court. This is because the first appearance is not simply an administrative hearing but represents the earliest occasion on which an accused can formally indicate a plea. This approach was supported by the CPS guidance which states “(t)here is currently no provision for sending defendants to the Crown Court in their absence”.

In addition, the applicant relied on the judgment in Lord Janner v Westminster Magistrates’ Court [2015] EWHC 2578 (Admin) in which the Divisional Court found that the Magistrates' Court had no power to send a defendant for trial under section 51 CDA 1998 if they are not present in the courtroom. The decision in this case was in part based on rule 9(2) of the Criminal Procedure Rules: “(t)he general rule is that the court must exercise its powers in the defendant’s presence…”.

Furthermore, the applicant contended that section 122 of the Magistrates’ Court Act 1980 (which states that an absent party who is legally represented shall be deemed not to be absent) does not displace the requirement for personal attendance under section 51 CDA 1998.

The Crown’s case

The Crown submitted that, properly construed, section 51 CDA 1998 does not require the appearance of a defendant in the magistrates’ court provided they are legally represented when, at this “administrative hearing”, they are sent to the Crown Court to stand trial for an indictable-only offence. It is suggested that the appearance of the defendant by his lawyer is permitted pursuant to section 122 of the Magistrates Court Act 1980, and that they will be present, or deemed not to be absent, unless an enactment expressly requires personal presence (“expressly requiring his presence”). As such, the Merseyside Magistrates’ Court was entitled to send the applicant’s case to the Crown Court and his subsequent trials were lawfully conducted in his absence.

Court of Appeal Ruling

The application was refused. The Court found that section 51 CDA 1998 does not stipulate that the sending must be done with the accused present in court. Section 122 MCA, as drafted, applies unless there is an express provision requiring the accused’s presence and there is no such stipulation in section 51. Furthermore, the CPS guidance was based on an interpretation of section 51 which was incorrect: “We have no doubt that section 122 permits the accused to be absent for the purposes of a case being sent to the Crown Court under section 51, as correctly submitted over a decade ago by the applicant’s then counsel to the justices on 26 February 2009. It is to be stressed that whether the accused is to be present or absent is a matter for the court to decide. We do not accept, therefore, that Parliament chose this short administrative hearing as the single point in time when a defendant facing an indictable-only offence must personally be before the court.”2

In respect of jurisdiction, the Court found that “we are in no doubt that the reference in section 51(1) to the accused appearing or being brought before a Magistrates’ Court should be treated as a procedural requirement. Parliament could not have intended that, where the accused was represented at a section 51 hearing but not present in person, either the sending to the Crown Court or the subsequent proceedings in that Court should inevitably be treated as vitiated. Any requirement for the accused to be present could not go to the jurisdiction of either court. Whether the proceedings should be treated as invalidated would have to depend on the circumstances of the case.3

[1] Note that the criminal procedure governing the sending of standalone either-way cases pursuant to section 51 CD 1998 is unaffected by the ruling in Umerji

[2] R v Umerji [2021] EWCA Crim 598 at 71

[3] R v Umerji [2021] EWCA Crim 598 at 104