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1. LORD JUSTICE BUXTON: This is an application for judicial review of a decision of the Liverpool Justices made on 15th October 1998 where having been invited to consider committal proceedings against Mr Quantrell under section 6(2) of the Magistrates' Courts Act 1980, and indeed commit for trial, they declined to do so by reason of the fact that Mr Quantrell was not present on the grounds of ill health. We have had the benefit, in this case, of reading submissions in affidavit form from Mr Parry, who is Mr Quantrell's solicitor, and in skeleton form from Mr Scholes who appears before us today on behalf of Mr Quantrell. We have also had the benefit of not only having an affidavit as to what occurred at the Court below, which is not in dispute, from the Chairman of the Magistrates, but also a detailed explanation by Mr Criddle, who was the clerk involved, of the advice he gave and the reasons why he considers that the Magistrates did not have vires to deal with the matter which was then before them. Additionally Mr Criddle has helpfully set out, and commented upon, all the statutory provisions that appear to be relevant to this case.

2. We therefore feel that we are well informed on the issue, but I feel obliged to put on record the fact that Mr Scholes told us this morning that this is regarded as a matter of some importance within the Magistrates' Courts' service and I am conscious that I am giving this judgment without the benefit of having heard submissions on behalf of the Magistrates. Nonetheless I feel able to deal with the substance of the matter.

3. As long ago as 14th May 1998 Mr Quantrell was charged with child abduction contrary to section 2(1) of the Child Abduction Act 1984. The circumstances were, to some extent, unusual because although we know little, or nothing, of the substance of the allegation, and do not need to do so, we do understand that the child whom he was said to have abducted, was his grandson aged six years. Apparently he had taken him to Scotland, where it is that Mr Quantrell lives. He denies the charge in the sense that although, as we understand it, the actual act of taking the child away is not disputed, Mr Quantrell contends that he has the defence available under those provisions of having acted with reasonable excuse. That being the circumstances, not only is it clear that this is a matter of some seriousness, but also it is something that is desirable should he be tried in the appropriate Court at as early a date as possible.

4. He appeared on a number of occasions on bail before the Liverpool City Magistrates and not surprisingly, in view of the nature of the case, on 6th August the Justices declined jurisdiction and adjourned the committal proceedings until October. It appears that Mr Quantrell living in Aberdeen, and again apparently being in straitened financial circumstances, had some difficulty in attending the Court. Certainly it is not a simple course for him to come from Aberdeen to Liverpool.

5. Further, and more seriously, he advised his solicitors, on 14th October 1998, that is to say immediately before he was due to appear before the Magistrates with a view to committal, that his general practitioner had diagnosed him as suffering from depression and had further instructed on medical grounds that he might not travel from Aberdeen to Liverpool in order to attend the Court. Mr Quantrell had already instructed his solicitors to consent to a committal under section 6(2) of the Magistrates' Courts Act: he and they, as I have said, being anxious to carry on with the matter.

6. On 15th October he did not attend, though his solicitor did. Both Mr Quantrell's solicitor and those representing the prosecution on that occasion were happy for the section 6(2) committal to take place and for Mr Quantrell to be committed, although he was absent. The Justices were, however, advised by their clerk that they had no power to commit him in his absence, nor did they have power in his absence to extend his bail to the Crown Court hearing. They therefore declined to pursue the matter further. No doubt if they had taken jurisdiction on that day, both parties being agreed that there should be a section 6(2) committal, that would have been what the Magistrates would have done, but they did not feel able to do that because Mr Quantrell was not there.

7. This application is to challenge that decision of the Justices and to examine the legal framework under which they were operating. It is necessary to look, in the first instance, at the provisions of the Magistrates' Courts Act with regard to committal proceedings. Those provisions are to be found in sections 4 to 8 of the 1980 Act under the general heading, or entry note, of "Committal Proceedings". I make that point before turning to the specific provisions because it seems to me that in general terms this part of the Act, sections 4 to 8, is intended to be read as a general code governing committal proceedings as a whole. That is important when we turn, in the context of this case, to section 4 which deals with what is described as the "General nature of committal proceedings" and says in section 4(4):

8. That, of course, was this case. Mr Quantrell could not be present by reasons of health. He was represented by his solicitor, Mr Parry. He had consented to the evidence being tendered in his absence.

9. We turn then to section 6. That deals with discharge or committal for trial. Section 6(1) says that:

10. That, broadly speaking, makes a distinction between section 6(1), committal on consideration of the evidence and section 6(2), inquiry into the offence in the light of the evidence tendered, but without its consideration. When we go back to section 4 that deals with allowing evidence to be tendered before the Justices in the absence of the accused. I take it that that applies both to section 6(1) and to section 6(2). Therefore the tendering of the evidence, it is said, may take place in the absence of the accused, but, according to the Magistrates' decision in this case, the actual decision under section 6(2) may not do so, there being no specific reference to permission or liberty for the Magistrates to make that decision when the accused is not there.

11. I am bound to say that I cannot agree with that construction of section 6(2). It seems to me firstly, that when the Act deals in section 4 with the tendering of the evidence before the Justices it is doing more than simply using that expression to refer to a discrete and separate part of the committal proceedings. The overall structure of the Act is using that expression, in my judgement, to refer to committal proceedings as a whole. Even if that is not right it would be wholly artificial to think that Parliament would have consciously made any provision in section 6(2) preventing action in the absence of the accused by simply by omitting any such provision in section 6(2). Particularly in a section 6(2) case the tendering of the evidence, and the consideration of whether the accused should be committed, is part and parcel of a single operation.

12. It really would be quite baffling as to why Parliament should say that the Justices might have the evidence tendered before them when they were invited to proceed under section 6(2), but that evidence having been tendered must then stop because they cannot make the actual decision with the accused not being present. Of course the Magistrates are in no way obliged to proceed when the accused is not present, even though he is represented; and there might be circumstances in which they thought it would be unfair or undesirable that they should so do. That is, in my judgement, a matter for them. But where, in my respectful view, the Magistrates were wrong in this case was to think that they were forbidden from considering whether Mr Quantrell should be committed by the absence of any express licence or liberty on their part to do so in section 6(2) itself.

13. I am reinforced in that view by turning to section 122 of the Magistrates' Courts Act. That is to be found in Part VII of the Act "MISCELLANEOUS AND SUPPLEMENTARY", a part of the Act that is to be assumed to apply to every other section in the Act unless it is specifically so excluded. Section 122(1) starts by saying:

14. That, in my judgement, applied in this case. Mr Quantrell was not absent because he was deemed to be there in the form and shape of Mr Parry. That that provision applies in the case of section 6(2) is reinforced by looking at subsection (3) of section 122:

15. The notes in Stone's Justices' Manual helpfully draw attention to a number of provisions in the Magistrates' Courts Act that do specifically require the Defendant to be present. Two examples are where there is a means inquiry in respect of a defaulter and also section 93(6) when there is an inquiry into default in paying maintenance. In both of those cases the legislator has specifically required the defaulter to be present. There are obviously good reasons for that because certain consequences can follow of a penal sort from a conclusion derogatory to the defaulter being reached by the Magistrates. The legislature is therefore particularly anxious that they should hear from the defaulter himself and examine him themselves rather than that the man should be able, in those circumstances, simply to send along a lawyer to apologise or make some excuse. However, not only is there no such specific provision in respect of section 6(2), there is also no good reason, in my judgement, why there should be such a specific provision: as is demonstrated by a case such as this where everybody concerned is anxious that the matter should go to the Crown Court and there is no consideration of fairness, or uncertainty, on the part of the Magistrates that would otherwise cause them to hold back from taking that course.

16. The Magistrates were also concerned about two further provisions one was Rule 8 of the Magistrates' Courts Rules:

17. I see no reason why the requirement that the person committed should forthwith receive notification of a right to object should not be given to his lawyer. There may be circumstances where the Magistrates have concerns about the efficacy of that course, but in the normal course of events, faced with a representative, such as Mr Parry clearly is, who is in contact with and responsible towards his client, then there is no reason for thinking that such notice cannot properly be given to him. Even if that were not the case, although the rule does require this matter to be done forthwith, in my judgement that does not mean that it must necessarily be done there and then in Court provided that on that very day the Magistrates' Court ensures that it is in communication in writing with the Defendant telling him of this right. Of course again if the Magistrates' Court is uncertain about where the person is, or is in doubt as to whether communication by writing will, in fact, reach him, then it might well decide in its discretion it could not proceed in the man's absence. That is a judgmental decision for the Magistrates and not something which is forced on them by the legislation.

18. Finally the Magistrates, we understand, were subsequently concerned about the provisions of section 129 of the Magistrates' Courts Act about further remand: saying that the Court may, in the man's absence, remand him for a further time, including the grant of bail. I do not see a difficulty there. Mr Quantrell could be granted bail in his absence by reason of the fact that his lawyer was present. Similarily section 129 does not apply only to further remands within the Magistrates' Court but also would extend to remands to the Crown Court. It is not necessary to go that far because the grant of bail, in my judgement, is one matter that can be done in the man's absence, again provided that the Court is sufficiently satisfied that any conditions that it applies will be adequately conveyed to the Defendant and that he understands them. It would plainly not be right that just because, and only because, Mr Quantrell was absent through illness nothing could go forward thereafter simply because there was a difficulty about his being bailed.

19. For all those reasons, therefore, although I appreciate the care that Mr Criddle has given to this matter and his concern about the procedure, and appreciate the concern of this Bench that it should be satisfied entirely that it is acting within the statutory provisions, I do not, in fact, agree with the conclusions that they reached. The Magistrates were, in my judgement, free to proceed on this matter in Mr Quantrell's absence under section 6(2). As I have endeavoured to explain, my judgment goes no further than saying that the Magistrates are not inhibited by the legislation from proceeding in the accused's absence. They are not obliged so to proceed if they consider there are good reasons why they should not do so. But on the particular case and the question before this Court, I would grant this application.

20. I, for my part, therefore, would order that certiorari go to quash the decision of the Magistrates of 16th October and if it is necessary (though I think it is not) to issue an Order of Mandamus requiring the Court to consider whether there is sufficient evidence to commit the Applicant to trial by jury in his absence, and if so to commit him. However, I would not make a formal Order of Mandamus because, having heard the terms of this judgment, the Court will no doubt wish to enter upon that consideration at as early a possible date as it can so that this matter can thereafter go forward. In those terms, therefore, I would grant this application.

21. MR JUSTICE COLLINS: I entirely agree. Quite apart from the specific provisions to which my Lord has referred in sections 4(4) and 6 of the Act, it seems to me that the purpose of section 122 is to enable matters to proceed in the absence of a Defendant provided he is represented. The 1980 Act is drafted, not surprisingly, on the assumption that the Defendant is going to be present at Court. That is why we find in section 122(2) the provision that a party represented is deemed not to be absent. It seems to me that the purpose of subsection (3) of section 122 is, as it says, to prevent that deeming provision applying only where a relevant provision expressly, and not merely implicitly, requires his presence. So it is that, in my judgment, Rule 8, for example, of the Magistrates' Courts Rules and section 5(2) of the Act, upon both of which provisions the Magistrates relied, enable the information to be given to the representative and in giving it to the representative it is deemed to have been given to the Defendant who is deemed not to be absent.

22. In those circumstances, like my Lord, I take the view that it is open to the Magistrates, in a case such as this, to decide to undertake committal proceedings, including the stage of committing for trial in the absence of a Defendant. I, like my Lord, emphasise that it is open to the Magistrates, but they are not bound to do so. It is a matter for their judgment, on the facts of any given case, whether they consider it an appropriate course to take. I agree with the Order proposed by my Lord.

23. LORD JUSTICE BUXTON: You want legal aid taxation?

24. MR SCHOLES: Yes, I seek legal aid taxation of the Applicant's costs and I invite the Court to order, for the sake of convenience (as I understand your Lordships have the power to do) that it should take place in Liverpool.

25. MR JUSTICE COLLINS: Why are you not applying for costs out of Central Funds? Are you not entitled to? Why should the Legal Aid Board pay rather than Central Funds?

26. MR SCHOLES: Would your Lordship allow me a moment? ( pause)

27. MR JUSTICE COLLINS: I have not checked, I am bound to say, but I think you are entitled, are you not, to your costs out of Central Funds if you successfully take criminal proceedings before this Court. It is the costs in the Criminal Cases Act.

28. MR SHOLES: I would invite an Order for costs in Central Funds.

29. MR JUSTICE COLLINS: It is the Prosecution of Offences Act 1985 section 16(5). It is in Archbold at page 661, paragraph 6-6 of the 1998 book. Subsection (5) of section 16 of the Act is:

30. LORD JUSTICE BUXTON: That seems right, does it not, Mr Scholes? I know it does not affect your actual client but it seems to us that this is a matter that should come out of Central Funds rather than the Legal Aid Fund. We will make an Order for costs out of Central Funds and you may have legal aid taxation. I think that will take place in Liverpool as a matter of course. If that is not a matter of course I see no reason why we cannot order that to be in Liverpool. Thank you both very much.