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Criminal Justice and Immigration Act 2008

Section 54: Trial or sentencing in absence of accused in magistrates' courts

392.Section 54 amends section 11 of the Magistrates’ Courts Act 1980, which makes provision for the circumstances in which a magistrates' court may proceed in the absence of the defendant.

393.Subsection (2) amends subsection (1) of section 11 of the Magistrates’ Courts Act 1980. The present subsection (1) provides that, where at the time and place appointed for trial or adjourned trial the prosecutor appears but the accused does not, the court has a discretion to proceed in the accused's absence. New subsection (1)(b) provides that in those circumstances, where the accused is 18 or over, the court must proceed with a trial in the absence of the accused unless it would be contrary to the interests of justice. Where the accused is under 18, the court's discretion to proceed in absence is unchanged (new subsection (1)(a)).

394.Subsection (3) inserts a new subsection (2A) into section 11 of the Magistrates’ Courts Act 1980. This provides that the court may not proceed if it considers that there is an acceptable reason for the accused’s absence.

395.Subsection (4) amends subsections (3) and (4) of section 11 the Magistrates’ Courts Act 1980 to reflect the fact that they now only apply to proceedings specified in subsection (5) of that section.

396.Subsection (5) inserts into section 11 of the Magistrates’ Courts Act 1980 a new subsection (3A) which provides that, where a court does impose a custodial sentence in the offender's absence, the person must be brought before the court before being taken to prison to start serving the sentence.

397.Subsection (6) inserts three new subsections into section 11 of the Magistrates’ Courts Act 1980: (5), (6) and (7).

  • New subsection (5) provides that the two limits on magistrates’ courts’ powers that are specified in subsections (3) and (4) apply where proceedings have been issued either by written charge and requisition or by way of an information followed by issue of a summons (i.e. in cases other than where the defendant was bailed to appear before the court on a certain date). In those cases, the court cannot pass a custodial sentence in the defendant’s absence, and cannot impose any disqualification unless they have already adjourned. Where a defendant was bailed to return to the court, those restrictions do not apply.

  • New subsection (6) makes clear that the court is not required to enquire into the reason for an accused’s absence before deciding whether to proceed in his absence, although it is intended that the court should take account of facts known to it (eg about the effect of severe weather on public transport) in deciding whether an acceptable reason for the accused’s absence exists.

  • New subsection (7) requires the court to state in open court its reasons for not proceeding in absence where the accused is 18 or over.

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