COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE HOOPER
MR JUSTICE GOLDRING
John Victor Hayward
Anthony William Jones
Paul Nigel Purvis
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Stephen Solley QC appeared for Hayward and Jones, Mr John Davis appeared for Purvis
Crown Copyright ©
THE VICE PRESIDENT:
"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 If he does remain he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save for such part that has already been established in evidence before the court.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.
"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.
"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".
"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."
"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".
"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".
"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."
"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".
"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".
"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.
"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".
"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).
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.
"It is a reasonable guess that he is not in the country" (2F)
"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.
"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)
"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".
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".