Section 51 procedure does not require presence of defendant – R v Umerji [2021] EWCA Crim 598

In January this year Chris Coltart QC and I wrote about the practical considerations when bringing private prosecutions against foreign defendants.  We said that “An individual cannot be sent to the Crown Court without appearing in the Magistrates’ Court”. It turns out we were wrong, at least as far as indictable only offences were concerned.  The Court of Appeal (Criminal Division) has set us right.

In our defence, that position might have been thought the more widely held view.  It was supported by the CPS guidance, and the decisions of the High Court in Lord Janner v Westminster Magistrates’ Court [2015] EWHC 2578 (Admin), and Court of Appeal in R v Tarry [2017] EWCA Crim 97, which all suggested that the wording of section 51 of the Crime and Disorder Act 1998, referring to an adult who “appears or is brought before the magistrates’ court” meant that as with either way offences, the defendant’s presence was required in order for an indictable only offence to be sent from the Magistrates’ Court to the Crown Court.

Section 122 of the Magistrates’ Court Act 1980, provides that someone who is represented shall be deemed not to be absent, unless any provision of any enactment expressly requires their presence.  It was thought that section 51 was such a provision.

The facts of Mr Umerji’s case were unattractive.  As the prosecution submitted “it is difficult to conceive of a more technical and unmeritorious set of circumstances than those arising in this application for permission to appeal…”.  He was accused, and twice convicted, of a £30m MTIC fraud.  His initial first appearance was in February 2009.  He sent a legal representative, who successfully argued that his case could be sent to the Crown Court in his absence.  He was represented throughout the initial stages of proceedings by three different solicitors’ firms, but did not attend any hearing.  His representatives then withdrew, the trial proceeded, and Mr Umerji was convicted in his absence.

Mr Umerji then re-engaged representatives, and successfully appealed his conviction, based on a flaw in the trial.  His appeal was allowed and a retrial ordered in March 2014.  Mr Umerji’s solicitors withdrew again shortly thereafter.  There was an unsuccessful attempt to extradite him from the UAE in 2016, and the retrial proceeded in his absence in 2018, where he was convicted and sentenced to 12 years’ imprisonment.  He then applied for leave to appeal, 554 days out of time, against his conviction, on the basis that the original sending procedure was flawed because section 51 required his presence.

The Court of Appeal found that the decisions in Janner and Tarry were per incuriam, and not binding.  Section 51 did not require a defendant’s presence, and section 122 applied.

There are a number of issues which the judgment raises-

1. The court found that “section 122 permits the accused to be absent for the purposes of a case being sent to the Crown Court under section 51”[1]. So what if a representative is not present?  If neither section 51 nor any other rule requires the defendant’s presence for the case to be sent, then there is actually no need for section 122.  In which case there would be no need for a representative to be present either.
2. The court stated that “whether the accused is to be present or absent is a matter for the court to decide”[2] but gave no guidance on exercising that discretion.  What factors should lead a court to send a case in the accused’s absence?   Mr Umerji sent a legal representative and argued the case should be sent.  What if a defendant argues the opposite, or does not engage at all?
3. As pointed out by those bringing the application, an uncomfortable distinction is created whereby either-way offences require a defendant’s presence, but summary only and indictable only offences do not. The previous distinction made sense, because it was the more serious offences where presence was required, but now the most serious offences can be tried without a defendant, even a foreign defendant served abroad, ever having attended court.  The Court of Appeal’s attempt to justify this through the lack of immediate consequences to a section 51 sending, as opposed to the indication of a plea in the either-way procedure, does not wholly satisfy this anomaly.

Was Mr Umerji’s a hard case creating bad law?  Perhaps that is no longer the relevant question.  Unless the Supreme Court intervenes, this is now the settled interpretation of section 51.  That creates very interesting possibilities regarding the prosecution of foreign defendants, both by public authorities and private prosecutors.  Guidance on whether to send a case in the absence of the accused is surely required as a matter of urgency.

Lewis MacDonald

[1] At §71

[2] Ibid.