England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Wednesday 31st January 2001

THE VICE PRESIDENT:

1. There are three cases before the court in each of which the defendant was tried by judge and jury in his absence. Hayward, with the leave of the single judge, and Jones, with the leave of this court, appeal against their conviction and Purvis renews his application for leave to appeal, following refusal by the single judge. All three renew their applications for leave to appeal against sentence following refusal by the single judge.
2. Before looking at the circumstances of each case, it is convenient to consider what principles should determine whether, and if so in what circumstances, such a trial can properly take place.
3. Mr. Solley Q.C., for Hayward and Jones, submitted that, if the defendant is absent and unrepresented, there is a significant risk that the trial will be unsafe because of the lack of cross-examination of prosecution witnesses and evidence for the defence. No public interest can justify such a trial. Such a trial can only be contemplated if a defendant absconds; and, as that is so rare an occurrence, there is no public interest in permitting such a trial. The judge should require assistance from counsel for the defence even if a defendant has absconded and the Bar Council Guidance, paragraph 16.3.1 issued with the Bar's Code of Conduct may, in consequence, require amendment. This presently provides:

"if during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the barrister's professional client in accordance with the ruling of the Law Society withdraws from the case then the barrister too should withdraw. If the trial judge requests the barrister to remain to assist the court the barrister has an absolute discretion whether to do so or not. If he does remain he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save for such part that has already been established in evidence before the court. He should request the trial judge to instruct the jury that this is the basis on which he his prepared to assist the court."

Paragraph 16.3.2 provides:

"If for any reason the barrister's professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client was still present in court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called by the prosecution and call witnesses for the defence."

He further submitted that there is no point in having such a trial, as any sentence imposed cannot be effective until the defendant surrenders. The impact of delay on victims should be dealt with in other ways, such as by preserving evidence in some form or counselling. Defendants who are on bail are not warned at the time of being bailed that they may be tried in their absence. There is no distinction between a defendant who absconds before or during trial. In the Magistrates Court, trial in a defendant's absence is specifically contemplated by section 11(1) of the Magistrates Courts Act 1980 but in such a case sentence is limited by section 11(3) to 3 months imprisonment and, in any event, there is a right of appeal to the Crown Court on fact and law. Trial in a defendant's absence is justifiable in those European Countries where there is an inquisitorial system, but not in England. No judicial discretion to continue a trial without the defendant should exist if the consequence of its exercise is inevitably to ensure serious unfairness. The right to be present is a fundamental right and the courts, rather than seeking to preserve a residual discretion, should pass the problem of absent defendants to the legislature.

4. In the alternative, Mr. Solley Q.C. submitted that, if there is a judicial discretion, it should be exercised in favour of continuing a trial only in specific circumstances. The risk of unfairness must be kept to a minimum by establishing to the criminal standard that the defendant has waived his right to be present; there must be a lawyer to represent the defendant even if he has said that he does not wish to be represented; the discretion must be exercised only after full public argument including argument on behalf of the defence; a warning must be given when a defendant is bailed that, if he fails to surrender, he may be tried in his absence; and a judge's discretion should be exercised in favour of continuing in the absence of the defendant only if there would otherwise be overwhelming prejudice to the prosecution.
5. Mr. Solley Q.C. took us to a number of authorities. In Jones (No 2) 56 Cr. App. R 413 the Court of Appeal held that a defendant has a right to be present at his trial unless he abuses that right for the purposes of obstructing the proceedings by unseemly, indecent or outrageous behaviour in which case he may be removed and the trial may proceed in his absence, or he waives that right by voluntarily absenting himself, as by absconding during the trial. In such a case the judge:

"has in law a discretion, but that discretion should be exercised with great reluctance and with a view rather to the due administration of justice than to the convenience or comfort of anyone."

(Hood J in Abrahams (1895) 21 VLR 343 at 353 cited with approval by Roskill LJ giving the judgment of the court in Jones (No 2) at page 421. The court in Jones (No 2) emphasised that it would not countenance putting a premium on jumping bail.

6. In Shaw 70 Cr. App. R 313 the Court of Appeal held that it is not for a trial judge to involve himself in questions of professional conduct and etiquette, where a defendant absconds during the trial: counsel and solicitor had wanted to continue but the judge decided that they could take no further part. It was this decision that lead to the provisions in the Bar's Code of Conduct and guidance which we have earlier rehearsed. In Howson 74 Cr. App. R 172 the Court of Appeal held that the judge's discretion to continue a trial is not limited to cases in which the accused has abused his right to be present or has voluntarily agreed to the trial going on in his absence and, in an appropriate case, (which Howson was not), the judge has a discretion to continue in the absence of an accused through illness. But the discretion is to be used sparingly and never if the accused's defence could be prejudiced by his absence. In Jones, Planter and Pengelly 1991 Crim LR 856, CACD transcript 14th June 1991, the Court of Appeal, presided over by Lord Lane, Chief Justice, held that it is plain in principle and has been since the end of the 19th century (see Berry (1897) 104 L.T. 110 and Browne (1906) 70 J.P. 472) that a judge has a discretion to order a trial to start or continue not only where a defendant voluntarily absents himself but also where as in the case of Howson, he is involuntarily absent. At page 10G of the transcript Lord Lane said:

"There is no distinction in principle between a defendant who misbehaves in such a way as to make his/her removal from court necessary and on the other hand the person who deliberately refuses to attend the trial when he is at liberty to do so".

7. Lord Lane also referred at page 11G of the transcript to R v Governor of Brixton Prison Ex P Caborn-Waterfield 1960 2 QB 498. In that case Salmon J, giving the judgment of the court, referred to the applicant having, on three separate occasions, without excuse failed to appear before a French court: "it certainly does not lie in his mouth to complain that he was dealt with in his absence". The discretion is to be exercised with considerable care. In his comment on Jones, Planter and Pengelly Professor Sir John Smith pointed out the difference between a case of a defendant deliberately absent and involuntarily absent: in the former case he effectively waives his right to be present, whereas in the latter case the right to be present is qualified by the discretion of the judge to allow the case to proceed.
8. In Nadeem Araf CACD transcript 8th February 1996 the Court of Appeal dismissed an application for leave to appeal when the trial judge continued after a defendant had absconded following the complainant's evidence and his counsel and solicitors withdrew. The court, following Jones (No 2), said that this was a proper exercise of discretion, the defendant having brought the matter entirely upon his own head. In Donnelly CACD transcript 12th June 1997, [1997] EWCA Crim 1431 the Court of Appeal dismissed an appeal by a defendant who had absconded following legal argument and before the jury was sworn because he had not been provided with legal aid to obtain the accountant's report which he believed he needed. The judge refused to adjourn. Counsel continued to represent the defendant during the trial which lasted for some weeks. McCowan LJ giving the judgment of the court said:

"What this appellant was saying to the judge in the letter he wrote was "if you will do what I want I will come to court. If you will not do what I want I will not." This is an attitude to which this court can lend no support. It is totally unacceptable behaviour and it will provide an unhappy precedent for other cases if we were to say that, having voluntarily stayed away from his trial in those circumstances, an appellant can come along years later and say "I should have had an adjournment. It was wrong that I did not, so quash my conviction."

9. In Genese and Kaye 1988 Crim. LR 679 the Court of Appeal dismissed an appeal by two defendants whose co-accused had absconded early in the trial. In the similar case of Panayis 1999 Crim. LR 84, [1998] EWCA Crim 1971, where a co-accused had absconded, leave to appeal was refused to an applicant who claimed he had been prejudiced.
10. Mr. Solley Q.C. then referred us to a number of European authorities. The Council of Europe Committee of Ministers on 21st May 1975 recommended a number of minimum rules including:

"1. No one may be tried without having first been effectively served with a summons in time to enable him to appear and to prepare his defence, unless it is established that he has deliberately sought to evade justice.

2. The summons must state the consequences of any failure by the accused to appear at the trial.

3. Where the court finds that an accused person who fails to appear at the trial has been served with a summons it must order an adjournment if it considers personal appearance of the accused to be indispensable or if there is reason to believe that he has been prevented from appearing.

4. The accused must not be tried in his absence if it is possible and desirable to transfer the proceedings to another state or to apply for extradition.

5. Where the accused is tried in his absence evidence must be taken in the usual manner and the defence must have the right to intervene...

7. Any person tried in his absence must be able to appeal against the judgment by whatever means of recourse would have been open to him had he been present...

9. A person tried in his absence, but upon whom a summons has been improperly served is entitled to a retrial, in the ordinary way, if that person can prove that his absence and the fact that he could not inform the judge thereof were due to reasons beyond his control."

In Colozza v Italy 7 EHRR 516 the accused was unaware of the proceedings against him and, in paragraph 28 of its judgment, the court said it was not shown that:

"Mr. Colozza waived exercise of his right to appear and to defend himself or that he was seeking to evade justice. It is, therefore, not necessary to decide whether a person accused of a criminal offence who does actually abscond thereby forfeits the benefit of the rights in question".

In paragraph 29 the court said:

"The impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to dispersal of the evidence, expiry of the time limits for prosecution or a miscarriage of justice".

In paragraph 30 the court said:

"The Contracting States enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6(1) in this field. The court's task is not to indicate those means to the States but to determine whether the result called for by the Convention has been achieved".

11. In Brozicek v Italy 12 EHRR 371 the court held that there had been a violation of Article 6(1) where a defendant who did not understand Italian was tried in Italy in absentia and the evidence did not show he intended to waive his right to participate in the trial. In Ekbatani v Sweden 13 EHRR 504 the court found a violation of Article 6 where the domestic Court of Appeal refused to hear the defendant's lawyers. In paragraph 25 of the judgment the court affirmed the general principle that a person charged with a criminal offence is entitled to be present at the trial hearing. In Poitrimol v France 18 EHRR 130 the defendant, defended by counsel, was tried in his absence, but his appeals to the local Court of Appeal and the Court of Cassation were rejected, those courts refusing to hear his lawyers. This was held, by 5 votes to 4, to be a breach of Article 6. In paragraph 31 of its judgment the court said:

"Proceedings held in an accused's absence are not in principle incompatible with the Convention if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge in respect of both law and fact. It is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself, but at all events such a waiver must, if it is to be effective for convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance".

In paragraph 35 the court said that in that case:

" it is unnecessary to decide whether it is permissible in principle to punish [unjustified] absences by ignoring the right to legal assistance, since at all events the suppression of that right was disproportionate in the circumstances. It deprived Mr. Poitrimol... of his only chance of having arguments of law and fact presented at second instance in respect of the charge against him".

At paragraph 38 the court said:

"In the French system of criminal procedure, whether an accused who does not appear may have arguments of law and fact presented at second instance in respect of the charge against him depends largely on whether he has provided valid excuses for his absence. It is accordingly essential that there should be an opportunity for review of the legal grounds on which the Court of Appeal has rejected such excuses".

12. In Lala v Netherlands 18 EHRR 586 the defendant was convicted of forgery at a trial in his absence. The Netherlands Court of Appeal refused to allow counsel to represent him as he was still absent. He had not appeared at trial because, had he done so, he would have been liable to arrest and detention for failing to pay a previous fine. In paragraph 33 the court held that:

"The fact that the defendant, in spite of having been properly summoned, does not appear, can not - even in the absence of an excuse - justify depriving him of his right under article 6 section 3 of the convention to be defended by counsel".

The court also referred to the:

"Crucial importance for the fairness of the criminal justice system that the accused be adequately defended both at first instance and on appeal."

13. It is to be noted that, under the Netherlands code of criminal procedure, an accused is not generally under an obligation to appear at his trial. If he does not appear, the court can declare him to be in default and proceed in his absence, even if the defendant gives prior notice of his absence and asks for an adjournment or submits his defence in writing and even if the defendant cannot be blamed for his absence. A lawyer authorised to appear for an absent defendant is in the position of the accused himself and can be cross-examined. If such representation is allowed at first instance it is not allowed on appeal before the Court of Appeal if the defendant remains absent. These provisions are all strikingly different from English Common Law and statutory procedures. Furthermore, it is to be noted that the Netherlands Supreme Court, in refusing to permit the defendant to be represented reasoned that:

"Were such an entitlement to be recognised trial in absentia would take on an adversarial character incompatible with the basic idea of the code of criminal procedure that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence".

14. Criminal proceedings in England are, of course, entirely adversarial in character. It is also to be noted that, as the E.Ct.H.R. pointed out in paragraph 32 of its judgment, the Netherlands Supreme Court's ruling was based on the drafting history of the Code of Criminal Procedure and not on a doctrine that unjustified absences of the accused should be discouraged. As is apparent from the English authorities to which we have referred, the common law seeks to discourage unjustified absences of the accused but presence is not a necessary pre-requisite to representation at trial or on appeal: this depends on the circumstances of the particular case, including whether instructions are being given by the absent defendant to those representing him. Furthermore, generally, and as has occurred in all 3 of the present cases, defendants in England who were absent from trial are permitted to instruct lawyers to represent them on appeal in this court and this court hears full argument before adjudication. Accordingly, although we take account of the E.Ct.H.R.'s decision in Lala, in accordance with section 2(1)(a) of the Human Rights Act 1998, we are unpersuaded either that it is determinative of the approach which we should adopt in the light of the very different legal practices and procedures in England and the Netherlands or that is demonstrates that English procedures are unfair.
15. In Pelladoah v Netherlands 19 EHRR 81 the E.Ct.H.R. unanimously held that there had been a violation of Article 6 when, on an appeal and at a hearing both in absentia, the Netherlands Appeal Court refused to allow counsel to represent the defendant. In paragraph 37 of their judgment the court noted that the case did not concern the question whether, in view of the gravity of what was at stake for the applicant, trial in his absence was compatible with Article 6. The question was whether the domestic Court of Appeal should properly have decided the case without trial counsel being allowed to defend the accused. The importance of what was at stake was a factor to be taken into account. The court concluded, at paragraph 40, that a properly summoned, absent, defendant could not be deprived of his right under Article 6(3) to be defended by counsel. In paragraph 41 the court said:

"It is for the courts to ensure that a trial is fair and, accordingly, that counsel who attends the trial for the apparent purpose of defending the accused in his absence, is given the opportunity to do so".

16. In Van Geyseghem v Belgium application No 26103/95, (2001) 32 EHRR 24 the Brussels Court of Appeal refused to hear the counsel of a defendant convicted in absentia and the Belgium Court of Cassation dismissed an appeal. The European Court held that there had been a breach of Article 6(1) and (3c). In paragraph 34 of its judgment the court said:

"The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the basic features of a fair trial. An accused does not lose this right merely on an account of not attending a court hearing. Even if the legislature must be able to discourage unjustified absences, it cannot penalise them by creating exceptions to the right to legal assistance. The legitimate requirement that defendants must attend court hearings can be satisfied by means other than deprivation of the right to be defended. The court notes that Article 185.3 of the Code of Criminal Procedure provides that in any event the criminal court may order an accused to attend and that no appeal lies against such a decision."

The court applied the principle established in Lala and Pelladoah and said it was the Brussels Court of Appeal's duty to allow counsel who attended the hearing to defend the defendant even in her absence. The court again pointed out in paragraph 28 that the issue in that case was not whether a trial in the accused's absence is compatible with Article 6.

17. In Krombach v Bamberski European Court of Justice 28th March 2000, in a judgment dealing with the interpretation of the Convention of 27th September 1968 on the jurisdiction and enforcement of judgments in civil and commercial matters, the German Court asked whether a refusal to allow a defendant to have his defence presented unless he appeared in person could be taken into account when deciding whether a judgment should be recognised under Article 27 of the Convention. In paragraph 38, the European Court referred to the right to be defended as occupying "a prominent position in the organisation and conduct of a fair trial" and referred to it as a "fundamental right". The court went on in paragraph 39 to refer to the decisions of the E.Ct.H.R. in Poitrimol, Pelladoah and Van Geyseghem and said:

"The European Court of Human Rights has on several occasions ruled in cases relating to criminal proceedings that, although not absolute, the right of every person charged with an offence to be effectively defended by a lawyer, if need be one appointed by the court, is one of the fundamental elements in a fair trial and an accused person does not forfeit entitlement to such a right simply because he is not present at the hearing".

Accordingly:

"the refusal to hear the defence of an accused person who is not present at the hearing constitutes a manifest breach of a fundamental right" (paragraph 40).

18. Mr. Lodge Q.C., for the Crown in Hayward, submitted that the English authorities demonstrate that whether a trial should continue in the absence of the defendant is entirely a matter within the discretion of the trial judge. None of the European authorities states that there is a right not to be tried in absentia. There is no absolute right to be present or to legal representation: the right to both can be waived. Recommendations 1 and 3 of the Council of Europe Committee of Ministers both contemplate the trial in his absence of someone who has deliberately absconded. The English and European authorities do not contemplate that a defendant should be given more than one chance to decide whether he would return. In exercising his discretion, the trial judge should balance the various competing factors.
19. For the Crown in Jones, Mr. Cornwall adopted Mr. Lodge's general submission and stressed the primary role of the court, rather than the defendant, in deciding whether a trial should take place.
20. On behalf of Purvis, Mr. Davis adopted Mr. Solley's submissions. He stressed that in Jones (No. 2) the court emphasised that the discretion to proceed in a defendant's absence must be exercised with great reluctance and with a view to the due administration of justice. Mr. Davis is a solicitor advocate and he told the court that the Law Society have no comparable provisions to the Code of Conduct and Guidance to the Bar which, he submitted, do not constitute rules of law.
21. For the Crown in Purvis, Mr. Taylor adopted Mr. Cornwall's submission in relation to the supremacy of the court. It is not permissible for a defendant to say "I will be tried when it is convenient to me".
22. In our judgment, in the light of the submissions which we have heard and the English and European authorities to which we have referred, the principles which should guide the English courts in relation to the trial of a defendant in his absence are these:

1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:

(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;

(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;

(iii) the likely length of such an adjournment;

(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;

(v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;

(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;

(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;

(viii) the seriousness of the offence, which affects defendant, victim and public;

(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;

(x) the effect of delay on the memories of witnesses;

(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

23. We see no necessity for a defendant who is bailed to be expressly warned that, if he absconds, he may be tried in his absence, for that has been the English common law for over a century. We see no reason for the Bar's Code of Conduct and guidance to be amended. It is possible that our views may require some amendment to be made to the statutory provisions for legal aid. But, as we have heard no argument on this aspect, we say nothing further about it.
24. We turn to consider the particular cases in the light of these principles and the further specific submissions made to us.
25. The appellant Hayward was convicted by the jury on 17th October 1997 on the first 5 counts of a 9 count indictment. Count 1 alleged causing an untrue declaration to be made and Counts 2 to 5 each alleged the fraudulent evasion of the prohibition on the importation of alcohol contrary to section 170(2) of the Custom and Excise Management Act 1979. He was sentenced to a total of 3 years imprisonment. The jury were unable to reach a verdict on Counts 6 to 9 which alleged similar offences to those in Counts 2 to 5. Prosecuting counsel indicated that a retrial on Counts 6 to 9 would probably be sought. On 8th June 1998 the Court of Appeal dismissed the appellant's appeal against his conviction on Counts 2 to 5 and prosecuting counsel told the court that there would be a retrial on Counts 6 to 9. On 23rd October 1998, Hayward, who was serving his sentence, left prison on weekend home leave. He did not return to prison, as he should have done, on 26th October 1998. On that day he left the United Kingdom on a false passport and travelled to Amsterdam, Thailand, the United States and the Bahamas. On 10th May 1999, at Leeds Crown Court following a 5 day retrial in his absence, Hayward, who was unrepresented, was convicted on the remaining 4 Counts and sentenced to 2 years imprisonment on each concurrently, but consecutively to the earlier sentence of 3 years imprisonment. His total sentence is therefore 5 years imprisonment. He appeals against conviction by leave of the single judge on the ground that the trial judge erred in permitting the retrial to take place in his absence.
26. It is unnecessary to rehearse the details of the case against him. In outline, all the evasion counts related to alcoholic drink removed from bonded warehouses in the United Kingdom. Counts 2 to 5 related to goods which, according to false documents to which Count 1 related, had left the country when they had not: in consequence UK duty was evaded. Counts 6 to 9 related to goods transported to Belgium on proper documentation, but re-imported in to the United Kingdom on false Belgium documents so that UK duty was evaded. In relation to Counts 2 to 5 the defence was that, as the goods had been taken to Hayward's warehouse in Calais, duty suspension arrangements meant that the payment of duty had been evaded in France and not the United Kingdom. In relation to Counts 6 and 9 Hayward admitted that the goods had gone to a bonded warehouse in Belgium but claimed that a man called van Hal had bought them and it was he and not Hayward who had evaded duty when they were re-imported into the United Kingdom. In relation to Counts 7 and 8 Hayward said he had provided false documents for the Belgium bonded warehouse but the goods had been sold in Calais, evading payment to the French authorities who Hayward claimed had treated him badly. In relation to Counts 1 to 5 formal admissions were made at the first trial as to the falsity of documents: Hayward explained in evidence that he had lied in interview about these documents so that the United Kingdom authorities would not report the evasion of French duty to the French authorities.
27. On 2nd December 1998 at a discussion in chambers between Judge Wolstenhome, Mr. Lodge Q.C. and Hayward's junior counsel Mr. Gregory, Mr. Gregory reported Hayward's failure to return to prison and said;

"It is a reasonable guess that he is not in the country" (2F)

and

"Our instructions are effectively withdrawn physically by the departure of Mr. Hayward. There are some fundamental questions to answer whether he wishes us to continue to represent him". (6F)

Mr. Gregory also said that the defence had never been lead to believe there would be no retrial.

28. A date for that retrial had been fixed for 4th May 1999 and the judge enquired whether the prosecution were inviting him to hold that trial in the absence of Hayward. Mr. Lodge Q.C. replied that the final decision had not been made, but the probability was that the prosecution would seek a trial in the absence of Hayward:

"because there has got to be an end to this litigation at some stage and... we would submit ... that the trial date be kept". (7B)

Towards the end of the discussion the judge said:

"I do not think that the question of trying him in his absence really arises to day. It is a long time between now and May. He is unlawfully at large. ..... It is too early for me to be making any orders on the basis that this will be a trial in the defendant's absence. The furthest I am going today is I am not dissenting from the Crown's submission that there ought to be a finality to this litigation even if that means proceeding on the 4th May in his absence". (11 A-B)

29. On the 4th May, Hayward being absent and his lawyers having withdrawn from the case, the retrial proceeded without there apparently being any further submissions or consideration as to the propriety or otherwise of that course. The admissions made at the first trial about the falsity of documents were placed before the jury who did not, of course, have Hayward's explanation for his lies before them.
30. Mr. Solley Q.C. submitted that this history shows that the judge failed to give any consideration to the propriety of proceeding in the defendant's absence. There was no public interest in proceeding because the case depended entirely on documentation unaffected by delay. The prejudicial effect on the jury would have been enormous. There was an arguable defence because the previous jury had disagreed and Hayward had never been warned that he might be tried in his absence. He was in fact arrested on his arrival in the United Kingdom on the 9th December 1999 having been deported from the Bahamas. Mr. Lodge Q.C. submitted that, on 2nd December 1998, Hayward's counsel did not suggest that there was any possibility that he might return for trial in May and the judge knew that Hayward had business interests and assets outside the United Kingdom. He absconded knowing, by virtue of what had been said in the Court of Appeal, that a retrial was to take place. By absconding, he clearly waived his right to attend. He was in contact with is solicitor at least until an application for legal aid for the retrial was made at the beginning of November and the period for him to pay his legal aid contribution was extended by 7 days. Having absconded and not maintained contact with his solicitor, it is not open to him now to complain that he was tried in his absence. If the judge had sought submissions from the Crown, Mr. Lodge Q.C. would have submitted that there should be an end to the litigation and the Customs and Excise were entitled to know the position in relation to Hayward's United Kingdom assets. The judge would have no reason to expect that the appellant would ever voluntarily return, particularly has the judge knew that he had the means and contacts to live outside the United Kingdom indefinitely.
31. In our judgment, Hayward's appeal against conviction must succeed. The judge at no stage heard argument from anyone as to the way in which he should exercise his discretion to proceed in the defendant's absence and he gave no ruling on the subject. It appears simply to have been assumed that the trial would proceed in the appellant's absence and such an assumption cannot properly be made. As we have sought to indicate, the judge must, in the exercise of his discretion, consider and weigh many factors before trial in absence can be permitted. This is not, in our judgement, a case in which it can be said that, if he had considered all the relevant circumstances and exercised his discretion, he would necessarily have ordered the trial to proceed. On the contrary, it seems to us that the fact that a previous jury had disagreed in relation to Counts 6 to 9 was a factor to which the judge would have needed to attach a good deal of weight when deciding whether, in the absence of evidence from the defendant explaining the lies which he had told to the police, a fair trial could be held. Accordingly Hayward's appeal is allowed and his conviction on retrial quashed.
32. The appellant Jones was convicted on 9th October 1998, following a trial at Liverpool Crown Court before His Honour Judge Holloway for which he failed to answer to his bail. He was convicted of conspiracy to rob and sentenced to 13 years imprisonment. Subsequently, following his arrest a year later, he was sentenced to a concurrent term of 12 months for breach of bail. He was unrepresented at trial, his former solicitors and counsel having at their request been removed from the record 7 months previously.
33. The robbery of which Jones was convicted took place on 18th August 1997. Jones and a co-accused called Roberts were initially on bail and were committed for trial on 3rd December 1997. On 14th January 1998 the trial was fixed for 9th March, with both defendants on bail. On 27th February 1998 an application to vacate the trial date was dismissed. On 4th March 1998 the trial date was vacated at the defence's request. On 21st and 23rd March, respectively, Jones and Roberts last reported to the police in accordance with their bail conditions. On 1st June, neither defendant attended for trial and warrants were issued for their arrest. The case was adjourned until 5th October when it came briefly before another judge. On 6th October neither defendant appeared and Jones was not represented. Counsel for Roberts told the judge that he was not in a position to advance any issue on behalf of the defendant nor positively to put any matter to any prosecution witness or to challenge the accuracy or efficacy of the Crown's evidence. Counsel had considered whether it would be right to remain during the hearing as he was without constructive instructions. The judge gave him leave to withdraw from the case. Counsel for the Crown applied for the trial to proceed in the absence of the defendants. The Crown had been reluctant so to do on 1st June, when warrants had been issued, but it was now apparent that there was a wholly deliberate attempt to avoid standing trial. It would be grossly unfair to the prosecution witnesses, some of whom had had an extremely frightening experience, to be told to wait. A degree of finality should be brought to the matter. Memories would fade with the passage of time and the case significantly depended upon recollection. The ordinary vicissitudes of life, including ill health, would begin to play a part and there was no very good reason why the defendants should benefit from this when they had themselves created the situation. There was clearly a joint plan to leave the jurisdiction. They were the authors of their own misfortune. The jury would have to be told that no adverse inference could be drawn from their absence. The judge commented that conviction seemed almost inevitable. The judge was referred to Jones (No. 2). Prosecuting counsel said and the judge agreed that, where there was a modicum of doubt as to whether they had deliberately absconded, "one would have to hesitate", but clearly a conscious decision had been made. Counsel said that the judge had to undertake a balancing exercise.
34. The judge gave a careful, reasoned, ruling. He referred to Jones (No. 2) He said that counsel for both defendants, having considered the Code of Conduct for the Bar, had concluded that they could not justifiably remain in the case in the absence of their clients and he was being invited by the prosecution to proceed because the defendants had voluntarily absented themselves, for the last 6 months, from any contact with the court, knowing they faced very serious allegations.

"There are 35 live witnesses due to give evidence today some of whom are civilians who must have experienced a quite terrifying event when they were held up by armed masked men when this robbery took place. Some of the civilian witnesses have already indicated that they are less than happy to attend on a future occasion. Some of the prosecution witnesses have already been dispensed with because of that concern they have about continual delay".

He said that the case was unique in his experience and that of all others with whom he had discussed the matter. He said:

"In normal circumstances I am bound to say that my reaction initially to the proposition was that it would seem wrong to pursue any criminal trial, and particularly one as serious as this, in the absence of either a defendant or indeed in the absence of any assistance from counsel or solicitors on their behalf. But on the other hand there is another competing interest which seems to me to take precedence over that particular one and that is that there are 35 witnesses outside court who have come here for the second time today and who are anxiously awaiting the prospect of having to give evidence and in view of the defendants deliberate absenting of themselves the trauma that some of them have experienced during the course of this incident in unlikely to go away until such time as they actually have had this case finally dealt with either with the defendants pleading guilty, which is obviously not their intention, or indeed the trial taking place and a jury coming to a decision ..... I have come to the conclusion that the proper way of exercising my discretion in this most unusual case is for me to allow the case to proceed in the absence of both defendants. I am conscious that the consequence of that is likely to be that the defendants are likely to be found guilty by the jury because of the absence of the defendants and the absence of representation. But this is a strong case for the prosecution where clearly the defendants have frustrated and deliberately frustrated the authorities in trying to have this case finally concluded."

He went on:

"I cannot in all conscience feel that it is appropriate that those witnesses should be made to wait for what could be 6, 12, 18 months 2 years or some other period of time well into the future by which time some may not be willing to give evidence, some may have passed on, some may have gone to another part of the world, emigrated, all sorts of problems can arise which would then be to the advantage of these absent defendants."

He went on to say:

"Both Mr. Cornwall and myself will give anxious consideration to any matter which we think might have had some advantage as far as the defendants are concerned and make sure that that is highlighted during the currency of the evidence. In that way, if there is any material that assists either defendant, we will make sure that it is properly put before the jury in a fair manner so that the jury can come to a decision on the facts available to them".

35. Mr. Solley Q.C. submitted that the discretion was not properly exercised because the mere convenience of the 35 witnesses was irrelevant and although 2 of the 5 witnesses who had been attacked and bound by the robbers and whom the prosecution wished to call had suffered a horrifying experience, their evidence was not so important and this was not a sufficient reason for the trial. One witness had had previous psychological problems which might require help from a victim support organisation, but this was not a reason for proceeding in the defendants' absence. There ought to have been legal representation of the defendants before the judge exercised his discretion. Mr Solley Q.C. did not identify any additional factors which such representatives might have brought to the judge's attention.
36. Mr. Cornwall submitted, for the Crown, that both defendants had been missing for about 2 years and it is unacceptable for them to decide when they should be tried. He pointed out that these defendants were not unrepresented by reason of some rule of court procedure, as in several of the European authorities, but because they had deliberately failed to attend. The judge exercised his discretion properly and carefully. He had in mind that the case against the appellant was very strong and he did everything possible during the course of the trial to ensure that it was fair.
37. It is at this point necessary to refer to the evidence against the appellant and to the course of the trial. The robbery occurred at Euston Street Post Office in Liverpool on 18th August 1997. Three masked men broke in from an unused shop next door, making a hole through the common brick wall. The post master had a knife held to his throat and threats made to him and his family. Six members of staff had their hands cuffed or taped behind their backs and five of them were blindfolded. The experience was deeply traumatic. £85,000 in cash was taken to a waiting car and none recovered. After being chased by the police, the appellant was arrested in a yard off an alleyway about 500 metres away. The officer giving chase had seen a leg in blue jeans with a tan coloured boot disappearing over a wall. Jones was wearing such clothing. It was never suggested that there was unbroken observation by civilian and police witnesses of those fleeing, but such breaks as had occurred were so short that it would have been extraordinary if one of the actual robbers had vanished into the yard and his place had immediately been taken by the appellant, who had happened to be in indistinguishable clothing. On an 8 foot high wall, near the yard where Jones was arrested, was a blue coloured fleece jacket. It contained freshly broken particles of brick and mortar indistinguishable from those in the wall between the Post Office and the shop. Jones' T shirt, jeans and boots all contained a significant number of fragments of brick debris. Freshly broken mortar debris was found in the pockets of his jeans and in his boots. The bricks and mortar fragments were indistinguishable from those from the wall. Jones' T shirt contained fibres matching the fibres of the blue fleece jacket. The blue fleece jacket contained a single fibre matching Jones' T shirt. He had surgical gloves in the pocket of his jeans. A green baseball cap left behind in the Post Office contained a partial footwear mark consistent with Jones' right boot. 50 metres from where Jones was arrested, a walkie-talkie was recovered. There was evidence that the robbers were communicating with each other via walkie talkies. A licence for the use of a short range business radio, issued to Jones 3... months before, was recovered from his house. The witness who issued that licence to a man giving the name and address of Jones said the walkie talkie recovered by the police from the scene was indistinguishable from that which he had sold to that man. When interviewed by the police, in the presence of his solicitor, Jones said nothing.
38. Mr. Solley Q.C. was critical of the way in which, in his summing up, the judge dealt with the absence of the defendants.

The judge said:

"You should resolve the case on the evidence you have heard and not upon the evidence you might like to have heard. Please do not speculate about what other people might have said had they been called here to give evidence. That is particularly important in this case because as you are aware both defendants have voluntarily absented themselves from these proceedings. As I told you at the outset of this case in March this year within 2 days of each other they stopped reporting to 2 different police stations as they were ordered to under the conditions of the bail that was granted to them in January by one of my colleagues. Since that time towards the end of March, nothing as been heard of them and as a result of that both their counsel and solicitors have withdrawn from the case because they have no instructions from their clients in order to justify them continuing the case on their behalf. I told you at the outset of this case, prior to Mr. Cornwall's opening of the case, this case was due to start on 1st June this year but had to be postponed because neither of the defendants were in attendance, even though there were 35 witnesses for the prosecution here ready to give evidence. Since that time, 1st June, nothing has been heard of them and, after carefully considering the interests of all the other people involved in this case also taking into consideration the interests of the defendants and the overall interests of justice, I decided that this case should proceed in their absence. However it is important that you appreciate that you should not speculate as to why they are not here. Nor should you speculate what they might have said had they chosen to be here. Nor should you assume that their failure to attend in anyway at all establishes that either or both of them are guilty because it does not. Their absence proves nothing insofar as the prosecution case is concerned. Your responsibility is to carefully assess the evidence in this case in exactly the same way that you would have done had they been here and had they been represented by counsel and solicitors. The burden of proving guilt in this case which I will come to shortly does not change simply because they are not here and simply because they are not represented. Exactly the same principles will apply".

39. Mr Solley Q.C. further submitted that 3 absolutely bound witnesses who had been traumatised by their experience and whom the prosecution dispensed with at the trial, ought to have been called and the fact that prosecuting counsel and the judge cross-examined witnesses in relation to plans, photographs and items recovered was "not healthy".
40. Mr. Cornwall submitted that the passage in the summing-up dealing with the defendants absence was entirely proper, being no more and no less than the truth. The judge specifically directed the jury not to draw adverse inference from the defendants silence during interview and that the fact that they were absent and had not given evidence in no way assisted the prosecution to prove its case. The judge drew attention to possible innocent, alternative, explanations in relation to the evidence relied on by the prosecution, to the limitations in the forensic evidence and to the fact that that evidence would be undermined if the jury found that the samples might have been contaminated by the police before they reached the science laboratory. The judge directed the jury that there were no finger prints linking the appellant with the scene, no DNA evidence linking the defendant with the balaclavas recovered and no connection established between the appellant and the white get-away car. He directed the jury to consider whether either defendant might have been in the area for reasons wholly unconnected with the robbery and had simply become involved in the police chase because they had been mistakenly pointed out by an eye witness. Not calling the 3 absolutely bound witnesses could not possibly have prejudiced the defence and the conduct of the judge and prosecuting counsel in questioning witnesses could only have helped the defence.
41. In our judgment, the judge's exercise of discretion is not susceptible to effective challenge. He directed himself correctly in accordance with the law. He had very clearly in mind the possible prejudice to the defence if the trial proceeded without the appellant being present or represented. He did not have regard to any irrelevant factor. He reached a conclusion to continue with the trial which, in the light of his inevitable finding that the appellant had deliberately absented himself from court and from contact with his lawyers many months before trial, was well within the ambit of his discretion. This appellant, as it seems to us, had, clearly and expressly by his conduct, waived his right to be present and to be legally represented. Thereafter the course of the trial was, as it seems to us, as fair as it could be, the appellant having waived those rights. Prosecuting counsel, (whose duty under paragraph 11.1 of the Bar Counsel's Code of Conduct was not to attempt to obtain a conviction by all means at his command and not to regard himself as appearing for a party, but to lay before the court fairly and impartially the whole of the facts which comprised the case for the prosecution) and the judge did all they reasonably could to ensure that the trial was fair, in the unusual circumstances prevailing. The case against the appellant was in our view overwhelming. As the judge made clear to the jury in summing up, the only possible explanations of the forensic evidence were either guilt or that there had been a massive police conspiracy to contaminate the appellants clothing before it was examined by the forensic science laboratory. Although the appellant, now in custody, has been present at his appeal and able to instruct the solicitors and leading counsel who now represent him, no submission in support of the second explanation has been advanced to this court. Nor is it suggested that, if he had attended his trial, he could or would have provided an innocent explanation for the contamination of his clothing, his presence in the vicinity of the robbery or fleeing from the police, or that he was unconnected with the walkie talkie found near the scene. In our judgment there is no reason, in all these circumstances, to regard his conviction as unsafe or his trial as unfair and accordingly his appeal against conviction is dismissed.
42. The applicant Purvis was convicted on 28th September 1999, following a trial in his absence before His Honour Judge Baker, on two counts of procuring the execution of a valuable security by deception, two of attempting such an offence and one of obtaining services by deception. He was sentenced to 3 years imprisonment in total. Following refusal by the single judge of leave to appeal against conviction and sentence, he applies for an extension of time to renew that application and for leave to appeal. The court indicated to Mr. Davis, at the outset of the hearing before us, that the need for an extension of time would not stand in the way of success if the application for leave to appeal had merit. The offences related to the deception or attempted deception of a building society and three insurance companies. The prosecution alleged that the applicant made false representations to insurance companies in respect of an alleged theft of tools on Count 1, an alleged theft of jewellery on Count 3 and alleged burglaries on Counts 4 and 5. The thefts and burglaries had not occurred. False representations had also been made to obtain a mortgage from a building society on Count 2. The prosecution alleged that a man called Warren, referred to in connection with these offences, did not exist and that he and the applicant were the same person.
43. Before considering the submissions made on Purvis' behalf, it is necessary to rehearse the chronology of his case. He was first interviewed in November 1996 and again in May and June 1997. In September 1997 his documents were seized by his trustee in bankruptcy and he was committed for trial to the Crown Court. In December 1997 he was invited to, but did not, inspect the documentation held by the trustee. On 30th January 1998 he entered not guilty pleas and the defence indicated that he wanted to examine papers in the hands of the Official Receiver. In February 1998 there was a further plea and directions hearing and the defence were given access to the documents which they sought. On 25th May 1998, application was made to break the fixture for trial on 20th July on the grounds that a new counsel (the applicant's third) was acting and further inquiries needed to be made. No reference was made to the applicant's medical condition. The application was dismissed. On 9th July 1998, there was a further application to break the fixture, on the grounds of alleged lack of full disclosure. The defence were not able to explain why this complaint had been made so late. There was no reference to the applicant's medical condition. The judge said that the applications were wholly artificial and dismissed them. On 20th July, the first date fixed for trial, a succession of applications to adjourn on a variety of grounds, including, this time, a reference to the defendant's health, were all dismissed and the matter was adjourned to the following day to allow for a conference with yet another new counsel. On 21st July the defence successfully applied for an adjournment to examine documentation in the hands of the trustee in bankruptcy. The Crown, who were at that time unaware that the defendant had had ample prior opportunity to inspect certain documents, did not oppose the application. On 27th July the defendant served a request for copies of huge quantities of documents, most of which were irrelevant. On 30th July a judge made an order for disclosure of some documents. A second trial date was fixed for 7th December 1998. On that occasion a letter from a consultant cardiologist said that he would have thought that the applicant was unfit to stand trial. The cardiologist, unlike the judge, was unaware that the applicant had applied for a shotgun certificate, supported by an assertion that he had no relevant medical condition. The court also knew, as the cardiologist did not, that the applicant was involved in 16 separate civil actions up and down the country which had involved a number of hearings in the County Court and at the Court of Appeal at which he had been present. The court ordered that the applicant be examined by Dr. Anderson. On 9th December 1998 Dr Anderson examined the applicant and concluded that there was a contrast between the severity of the applicant's angina and the activity that he chose and was able to undertake. In particular, the applicant regularly drove a motor car. On 15th February 1999 a professor of cardiac surgery gave evidence before a judge. He was unaware of the applicant's involvement in the other civil proceedings, his application for a shotgun licence and of any pain alleged when driving. But he confirmed that the applicant suffered from heart disease and a stressful situation could lead to fatal cardiac arrest. The professor offered surgery within the next 3 or 4 weeks, followed by 10 weeks convalescence. The judge made it a condition of bail (subsequently removed) that such surgery should be undergone. On 22nd February 1999, the applicant again appeared before the court, having declined the opportunity of having surgery on 2nd March, and saying that he wished to have surgery in the summer. The judge concluded that the applicant was fit to stand trial and listed the trial for 1st March. On that date, submissions were adjourned to the following day and, on 2nd March, the Recorder vacated the trial date and ordered that, by 26th March, a medical timetable would be available and the defence case fully prepared. On 26th March no medical timetable was provided. Some matters still needed to be attended to by the defence. The case was listed for trial on 20th September. A week before that date an application to break the fixture on medical grounds was refused. On 17th September there was a letter from another consultant cardiac surgeon saying that the applicant had been given considerable priority on the waiting list and could be operated on in November or December 1999. The applicant declined that offer, saying that an operation would not be convenient for him until March 2000. The surgeon's conclusion was that the applicant had "not found it appropriate to have his operation at the times made available to him". On 20th September 1999, the fourth trial date, the applicant arrived at court, but complained of pains in the chest and was advised by his counsel to go to hospital. The judge ordered that, on discharge from hospital, he must immediately surrender to his bail and remain in custody until he could be brought to court. On 21st September the applicant was discharged from hospital and disappeared. Subsequently, he rang his solicitors saying that he was too unwell to attend his trial. On 22nd September there was a further report from a consultant physician before the court which indicated that, although a clinical diagnosis of angina was made, this relied heavily upon the patient's own history, so it was not possible to confirm that there was pain in his chest. The Crown applied for the case to proceed in the absence of the applicant. The defendant was legally represented. The judge granted this application. Throughout the trial, the applicant was represented by counsel and solicitors with whom it was apparent that he was in daily contact. On the 1st or 2nd day of the trial he purported, by letter, to sack his counsel and solicitors. At the judge's invitation they remained and it was apparent that the applicant continued to give instructions through his solicitor to counsel. Counsel continued to act in accordance with Bar Guidance 16.3.2. A witness was called for the defence. At the conclusion of the trial, on 28th September, the case was adjourned to 8th October in the hope that the applicant would by then have been apprehended. Counsel provided advice, but did not settle grounds, in relation to appeal. On 8th October 1999, the applicant was sentenced in his absence. On 20th October he wrote a letter advancing grounds of appeal against conviction and sentence. On 25th October, being still at large, he sought legal aid and applied for bail pending appeal. There was an extensive man-hunt for the applicant, which was not successful until he was found in hospital, having undergone a triple heart-bypass. He was arrested on 1st December 1999.
44. For Purvis, Mr. Davis did not suggest that, in ruling that the trial should proceed in the applicant's absence, the judge misdirected himself as to the law. But he submitted that there was nothing available to the Crown or the court to suggest that the applicant was fit to be tried. Counsel should have withdrawn from the case, at least during the trial when he was sacked and his instructions were withdrawn. His failure to do so harmed the applicant's position. In ordering that the trial should proceed, the judge seemed to be punishing the applicant for going to hospital not court. The judge exercised his discretion wrongly. There was a breach of the Article 6(3)(d) of the European Convention in that the applicant could not examine or have examined the witnesses against him and obtain the attendance and examination of witnesses on his behalf. Mr. Davis accepted that the applicant's solicitor was in touch with the applicant throughout the trial, although counsel thought it inappropriate to have contact with him whilst he was at large.
45. For the Crown, Mr. Taylor drew attention to the chronology which we have rehearsed. He submitted that the applicant clearly absconded from Court and was thereafter at large for 2 1/2 months, sometimes dressed as a woman. This was a truly exceptional case in which the judge was entitled to rule as he did. Thereafter, instructions continued to be given, a positive case was advanced on the applicant's behalf by counsel and a witness was called.
46. In our judgment, the judge was entitled to conclude, as he did, that the applicant had found reasons for not complying with medical advice, had deliberately absconded so that his whereabouts were unknown and had waived his right to be present. The judge said that the applicant's view about his medical condition could not be countenanced, having regard to the fact that he had been discharged from hospital. The jury would be told, and they were, that they should draw no inference against the defendant from his absence. In our judgment there is no arguable breach of Article 6(3)(d) because, whatever the purported effect on the applicant's withdrawal of instructions on the first or second day of the trial, his solicitors and counsel thereafter continued to act for him, his solicitors were in daily contact with him and he continued to provide instructions. There was overwhelming lay and expert evidence that the applicant had signed documents in the name Warren, that claims made in these documents were false and that in consequence cheques, in Counts 1 and 3, and a mortgage in Court 2 had been obtained. Likewise, in relation to Courts 4 and 5, false claims had been made by the applicant, pretending to be Warren, in relation to alleged loss of jewellery. We have considered Mr Davis' subsidiary complaints about photographic evidence and pre-trial publicity but there is in our judgment no substance in them. There is no reason to regard the applicant's conviction as even arguably, unsafe and accordingly his application for leave to appeal against conviction is refused.
47. We will hear any argument as to whether Hayward should be re-tried, and on the renewed applications for leave to appeal against sentence by Jones and Purvis.