Part 2: Courts, tribunals and coroners Chapter 1: Criminal procedure Section 9: Powers to proceed if accused absent from plea-before-venue and allocation hearing
Section 17A(2) of the MCA 1980 currently requires that the plea-before-venue procedure for adult defendants prosecuted for triable either-way offences that is provided for under section 17A of the Act must be proceeded with in the presence of the defendant at a court hearing. The only current exception to this rule that will allow the court to proceed with plea-before-venue in the absence of the adult defendant is where the defendant is legally represented, and the court considers that it is not practicable for the proceedings to be conducted in the defendant’s presence due to their disorderly conduct (section 17B(1) of the MCA 1980). If the court cannot complete the plea-before-venue procedure due to the adult defendant’s absence, it cannot progress to the allocation procedure.
	Section 18(2) of the MCA 1980 requires that the allocation procedure for adult defendants prosecuted for triable either-way offences provided for under sections 19 to 22 of the Act that follows plea-before-venue must also be proceeded with in the presence of the defendant at a court hearing. The only current exceptions to this rule that will allow the court to proceed in the absence of the adult defendant are where: (i) the defendant’s disorderly conduct before the court means that it is not practicable for the proceedings to be conducted in their presence (section 18(3) of the MCA 1980); or (ii) the defendant has legal representation who in the defendant’s absence, signifies the defendant’s consent to this and the court is satisfied there is good reason for doing so (section 23 of the MCA 1980).
	Section 9, subsection (1), amends the MCA 1980 to enable a magistrates’ courts to proceed with the plea-before-venue and allocation procedures for adult defendants prosecuted for triable-either way offences in the absence of an adult defendant in a wider range of circumstances, so long as it is in the interests of justice to do so.
	Section 9, subsection (2)(a), changes the heading of section 17B of the MCA 1980 from "Intention as to plea: absence of accused" to "Power to proceed if accused does not appear to give indication as to plea".
	Section 9, subsection 2(b), substitutes section 17B(1) of the MCA 1980 with new subsections (1A) to (1F), which specify the wider range of circumstances in which section 17B of the MCA 1980 has effect so that a magistrates’ court may proceed with the plea-before-venue procedure for triable either-way offences in the absence of an adult defendant.
	New subsection (1A) provides overarching safeguards in that the court can only proceed in the absence of an adult defendant if the defendant fails to appear at the hearing and the court is satisfied that it is not contrary to the interests of justice to do so in combination with any of the conditions specified in new subsections 17B(1B) to 17B(1E) of the MCA 1980 being met.
	The first condition, specified in new subsection (1B), is that the adult defendant’s legal representative is present at the hearing and has been instructed by the defendant to consent to the hearing in the defendant’s absence.
	The second condition, specified in new subsection (1C), is that that the adult defendant’s legal representative is present at the hearing and the court considers there is no acceptable reason for the defendant’s failure to attend.
	The third condition, specified in new subsection (1D), is that the court is satisfied that a notice of the allocation proceedings was served on the adult defendant within a reasonable time before the hearing and there is no acceptable reason for the defendant’s failure to attend.
	The fourth condition, specified in new subsection (1E), is that the adult defendant has appeared in court on a previous occasion to answer the charge (when the matter would have been listed for the plea-before-venue hearing in the defendant’s presence) and the court does not consider there is an acceptable reason for the defendant’s failure to attend.
	A separate application of section 17B is specified in new subsection (1F), which essentially preserves the original effect of section 17B(1) of the MCA 1980. It provides that, where the court considers that it is not practicable for the proceedings to be conducted in an adult defendant’s presence because of their disorderly conduct and it would not be contrary to the interest of justice to do so, they can proceed in the absence of the defendant.
	Section 9, subsection (2)(c), amends subsection (2) of section 17B of the MCA 1980, in order to acknowledge that there may now be circumstances in which a legal representative is not present at the hearing (e.g. if the condition specified under new subsection 1(D) above has been met) and thus, provides that section 17B(2)(a) to (d) only applies if a legal representative of the adult defendant is present.
	Section 9, subsection (2)(d), inserts new subsection (5) of section 17B of the MCA 1980, which directs the court to proceed with the allocation procedure in accordance with amended section 18(1) if no legal representative is present at the hearing. It also specifies that an adult defendant will be taken for the purposes of section 20 to have indicated a not-guilty plea.
	Section 9, subsection(3), omits subsection 18(3) of the MCA 1980 because the effect of this subsection will be preserved and provided for under new subsection (1F) of section 23 of the MCA 1980 (see below for further details), so that the powers to proceed if an adult defendant is absent from an allocation hearing are consolidated together under section 23 of the MCA 1980.
	Section 9 subsection (4)(a), changes the heading of section 23 of the MCA 1980 from "Power of court, with consent of legally represented accused, to proceed in his absence" to "Power to proceed if accused absent from allocation hearing" to account for the wider range of circumstances that will be provided for.
	Section 9, subsection (4)(b), substitutes section 23(1) of the MCA 1980 with new subsections (1A) to (1G), which specify the wider range of circumstances in which section 23 of the MCA 1980 has effect so that a magistrates’ court may proceed with the allocation procedure for triable either-way offences in the absence of an adult defendant.
	New subsection (1A) provides overarching safeguards in that the court can only proceed in the absence of an adult defendant if the defendant fails to appear at the hearing, and the court is satisfied that it is not contrary to the interests of justice to do so in combination with any of the conditions specified in new subsections 23(1B) to 23(1E) of the MCA 1980 being met.
	The first condition, specified in new subsection (1B), is that the adult defendant’s legal representative is present at the hearing and has been instructed by the defendant to consent to the hearing in the defendant’s absence.
	The second condition, specified in new subsection (1C), is that that an adult defendant’s legal representative is present at the hearing and the court considers there is no acceptable reason for the defendant’s failure to attend.
	The third condition, specified in new subsection (1D), is that the court is satisfied that a notice of the allocation proceedings was served on the adult defendant within a reasonable time before the hearing and there is no acceptable reason for the defendant’s failure to attend.
	The fourth condition, specified in new subsection (1E), is that the adult defendant has appeared in court on a previous occasion to answer the charge (when the matter would have been listed for the allocation hearing in the defendant’s presence) and the court does not consider there is an acceptable reason for the defendant’s failure to attend.
	A separate application of section 23 is specified in new subsection (1F), which essentially preserves the effect of omitted section 18(3) of the MCA 1980. It provides that, where the court considers that it is not practicable for the proceedings to be conducted in an adult defendant’s presence because of their disorderly conduct and it would not be contrary to the interest of justice to do so, they can proceed in the absence of the defendant.
	New subsection (1G) allows a magistrates’ court to move straight to the allocation procedure if (under new section 17B(5) of the MCA 1980) it decides at the prior plea-before-venue stage to proceed in the absence of the adult defendant or a legal representative, without a fresh consideration of the merits of proceeding in the absence of the defendant. This means that the court will need to reconsider the merits of proceeding in absence of the defendant: (i) where the court has not proceeded from plea-before-venue straight to allocation during the same hearing; or (ii) where a legal representative is present.
	In cases where the allocation decision is proceeded with in an adult defendant’s absence, they are deemed to have indicated a not-guilty plea, and the court will proceed to allocate the case for a summary trial in the magistrates’ court or a jury trial on indictment in the Crown Court. This allocation decision is made on the basis of the complexity of the case and whether the magistrates’ sentencing powers would be adequate to deal with the case on conviction.
	Section 9, subsection (4)(c), amends section 23(4) of the MCA 1980, which directs how the court should proceed if it decides that the offence is more suitable for a summary trial in an adult defendant’s absence, in order to provide that section 23(4)(a) and (b) only apply if a legal representative of the defendant is present at the hearing.
	Section 9, subsection (4)(d), inserts new subsections (4A) and (4B) of section 23 of the MCA 1980, which direct how the court should proceed if the court decides that the offence is more suitable for summary trial in the adult defendant’s absence when no legal representative is present at the hearing. New subsection (4A) enables the court to prepare for and proceed with a summary trial of the offence. However, new subsection (4B) specifies that where an offence is allocated for summary trial in the absence of a defendant and a legal representative, the defendant (who will not have previously consented to be tried summarily), may at any time before the start of the summary trial apply to the court for the question of the mode of trial to be re-opened. If the court agrees that it would be in the interest of justice to do so (having particular regard to the reason why the defendant previously failed to appear), it may cease to proceed to trial and instead recommence the allocation decision hearing so that the defendant may elect for a jury trial if they wish.
	Section 9 subsection (5) inserts new section 24BA of the MCA 1980 (power to proceed if child or young person absent from plea and allocation hearing), which enables the magistrates’ court (including a youth court) to proceed with the allocation procedure for an indictable offence where a defendant is a child or young person in their absence when the child or young person has both failed to provide an indication of plea in writing/online (in accordance with new section 24ZA of the MCA 1980) and failed to appear at the subsequent allocation hearing.
	New section 24BA(1) of the MCA 1980 provides overarching safeguards that specify the court can only proceed to allocate the offence in the absence of a child or young person where: (i) a hearing is being held for the purpose of section 24A(2) of the MCA 1980; (ii) the child or young person has not appeared at the hearing; (iii) the child or young person has failed to provide a written/online indication of plea in accordance with new section 24ZA of the MCA 1980; (iv) either the court is satisfied that notice has been served on the defendant in good time or the defendant has appeared at court on a previous occasion to answer the charge; (v) the court considers there is no acceptable reason for the child or young person’s failure to appear; and (vi) the court is satisfied that it would not be contrary to the interests of justice for the hearing to proceed in the child or young person’s absence.
	New section 24BA(2) of the MCA 1980 provides that where the court proceeds in accordance with new section 24BA, section 24A will cease to apply.
	New section 24BA(3) of the MCA 1980 specifies that if an absent child or young person has no legal representation present at the hearing, the court is to proceed with the allocation decision as if the child or young person had appeared and indicated a not-guilty plea.
	New section 24BA(4) of the MCA 1980 specifies that if an absent child or young person does have legal representation present at the hearing, the court is to proceed in accordance with the existing provisions for allocation in the absence of a child or young person provided for under section 24B(2) of the MCA 1980.