CONVICTED IN ABSENCE

If you have been convicted as a result of a mistake or you did not know about the case against you, you can apply for the case to be reopened.

 Having the case reopened is not the same as an appeal but using this method we can effectively start again and prepare the case for you. This is only worth doing if you actually want to defend the charge against you or improve the sentence that was passed by the court first time around.

There are two methods of re-opening your case in the Magistrates’ Court. The first is where the case ought to be re-opened in the “interests of justice” due to a mistake or error and the second by making  a statutory declaration to confirm that you knew nothing about the court proceedings.

1. Reopening the case at the Magistrates’ Court in the interests of justice

This route is most commonly used where an offender believes the sentence or conviction they have received is invalid or mistaken. It is a power the Court have to rectify and amend errors or mistakes.

The court will only re-open a case if it is found to be “in the interests of justice”. There is no strict definition of this and the court will look at a number of factors such as why the mistake was made, whether there are any more appropriate appeal routes, the impact this will have on any victim or other party and whether there is any delay in the application to reopen the case being made.

To re-open a case a formal application must be made to the Magistrates’ Court that convicted you. 

Although there is no strict time frame for making the application it is recommended that this is made within 28 days of the conviction. The court will normally list the matter for a hearing and an oral application will be made. If the court agree to re-open the case, in the case of a guilty plea, the sentencing will most likely take place at the same time. Therefore, it is essential that all preparations for this are done in advance and the best possible arguments can be put forward to obtain an improved result.

2. Statutory declarations

A statutory declaration is a formal application to the court to have a case re-opened where you knew nothing about the prosecution. The most common example of this is where a person is stopped for a motoring offence and some months later they are summonsed to attend Court but they do not receive the Court summons. In this situation you would be completely unaware of the court proceedings until the conviction and sentence letter is received some days later.

Unlike the re-opening of a case above, there is a strict time period to make a statutory declaration and a form to complete for the court.

The following criteria must be met for the declaration to be successful:

  • the case started with a summons or requisition;
  • the defendant did not know about the case; and
  • not more than 21 days after finding out about it (which time limit can be extended) the defendant delivers to the court a statutory declaration that he or she did not know about the case until after the trial.

Your declaration can be made before anyone who is authorised in law to hear it (for example, a solicitor), or before any Court. We always recommend that you make the application at Court if you are able to as it will normally speed the process along. The person who hears the declaration does not have to enquire into the truth of it. Their function is purely to hear the declaration, and certify that you have done so by signing it. If the declaration turns out to be untrue, you may be punished for committing perjury and so it is essential that you must only make this when you knew nothing about the court hearing.

We can assist whether you just want us to hear and sign the statutory declaration or you would like us to deal with the whole matter (from first hearing to trial or for sentence only). 

Once the declaration has been made, the conviction will be quashed and the case will be sent back to the Police or Crown Prosecution Service for them to issue a new court summons or postal requisition. However, some Courts have been known to quash the conviction but re-list the matter straight away rather than insisting the case is started again from scratch.

There is no time limit for the Police or Crown to reissue the Court summons or requisition and it could take a number of months before it is back before the court.

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