England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 29 October 2008

1. LADY JUSTICE HALLETT: We are told that the appellant is a well-known figure in Scarborough; he is a busker. On 23rd September 2006 at about 2 o'clock in the morning he climbed some scaffolding outside the home of a Mrs Silverwood. On her account she was woken by a man's head appearing through her open bedroom window. On the appellant's account he was merely attempting to retrieve some items of his that had been thrown up on to the scaffolding. He was captured on CCTV footage going to the scaffolding and leaving it soon after he was seen by Mrs Silverwood. He was arrested a minute and a half's walk away from Mrs Silverwood's flat. He was sitting on a bench and his jeans were covered in plaster dust. He was wearing a distinctive hat and trainers and he had a guitar upon his back. He admitted climbing the scaffolding but he denied looking into the complainant's flat or that he intended to burgle it. In a police interview he maintained a similar account. He later provided instructions in a similar vein to his legal advisers.
2. A plea and case management hearing took place on 15th January 2007. A questionnaire was endorsed by defence counsel to show that the appellant had been warned that if he failed to attend his trial it might proceed in his absence. Two witnesses were required to attend the trial and give evidence, namely the two officers, who had arrested and interviewed him.
3. Miss Caroline Wyatt was a trainee solicitor who had conduct of the appellant's case. She had an address for the appellant but given his personal circumstances, in the build up to the trial, she took the precaution of insisting the appellant attend at her offices every afternoon. She told the court that on 6th March 2007 she warned the appellant of the importance of attending his trial. The appellant said he could not afford to travel from Scarborough to York for his trial, so Miss Wyatt very sensibly undertook to see if she could find funds for him. She confirmed to him that she could fund his travel.
4. On 8th March 2007 Miss Wyatt's firm sent the appellant a letter informing him that his case was in the warned list. He signed and returned a receipt acknowledging that he had received the letter. At 2.55 pm on 14th March 2007 the appellant's solicitors received a telephone call from the Crown Court at York confirming his case was in the list for the next day. The appellant attended at the solicitor's offices as usual that afternoon. He was told his trial was on the next day. He was offered funds to enable him to travel to York but he said he did not need them because a friend would lend him the money. Both prosecution and defence counsel placed reliance on this meeting. Mr Greaney who appeared on behalf of the appellant before us suggested it showed the appellant was cooperating with his solicitors and had given every indication he intended to attend his trial. He had also attended a conference with counsel. Miss Hartshorn for the Crown pointed out that the solicitor's statement made it plain that the appellant knew his case was to be heard the next day, he knew how important it was to attend and he insisted he did not need funds to get to court.
5. In the result the appellant failed to attend court on 15th March 2007. Miss Hartshorn indicated that she intended to make an application to try the appellant in his absence. However, she was never required to develop that application or remind the court of the principles to be applied in this situation as endorsed in R v Anthony Jones [2003] 1 AC 1. His Honour Judge Hoffman, the trial judge, indicated that he was ready to deal with the matter there and then. He made a number of observations which caused the full court, who granted the appellant leave to appeal, some concern. Mr Greaney has conceded that the judge's remarks may simply have been to the effect that it was his invariable practice to tell defendants that the case will go on without them if they do not turn up.
6. Counsel attempted to persuade His Honour Judge Hoffman that since the appellant was a well-known individual in Scarborough the police might be tasked with trawling his known whereabouts. The judge failed to see why he should burden the hard-pressed constabulary in this way. He also observed, with some justification in our view, that the prosecution seemed to have a pretty strong case. He then said this:

"... I am not going to require the police to do this because I do not see that any useful purpose would result. He knew he was to be here. He was offered assistance. My goodness, how much more does a man need to get to court?"

To defence counsel, His Honour Judge Hoffman said this:

"I take it you register a token objection?"

Mr Robinson who then appeared for the appellant did register an objection. He tried to refer the judge to the case of Jones and R v O'Hare [2006] Crim.L.R 950, [2006] EWCA Crim 471, but he was not given the opportunity to develop his arguments either. The judge then ruled in these terms:

"... I have reminded myself about the principles in Jones as updated by O'Hare. I believe the interests of justice require this defendant to be tried in his absence. After all, he was told by his solicitors to come here only a day or two ago. They say, 'Would you like some help getting here?' So it could not have been made easier for him. He knew, from the endorsement on the plea and case management form, from his barrister, that he risked being tried in his absence if he did not come here and it is plain to me as a matter of inference from the fact that he has deliberately decided to absent himself - in one sense I am not surprised, because looking at the Crown's evidence, they have a very strong prima facie case. So he will be tried in his absence and let us get on with it."

Defence counsel remained to represent the appellant on the basis of his written instructions. The judge then proceeded to hear and grant an application by the prosecution to adduce evidence of the appellant's bad character -- he has previous convictions going back to 1988. Mr Greaney pointed out, in total the prosecution's application to try the appellant in his absence and adduce evidence of his bad character took five minutes to argue and determine. Four of the seven pages of transcript are devoted to the application to try the appellant in his absence. Mr Greaney argued regrettably the judge failed to give the issue of whether to try the appellant in his absence the attention and consideration which it deserved. He was convicted and sentenced to 3 years imprisonment.

7. A few days later on 20th March 2007, the appellant was arrested by the police and presented to His Honour Judge Hoffman. He accepted he had failed to answer his bail. He proffered as an explanation for his absence that he did not have enough money to get to court and claimed he had told his solicitors that fact. He has not improved on that account since that time. We were invited by Miss Hartshorn to note it was at odds with Miss Wyatt's account of the content of discussion with the appellant on 14th March 2007. His Honour Judge Hoffman, as unimpressed as ever by the appellant's behaviour, sentenced him to a further two months' imprisonment for failure to answer to bail this was to run consecutively to the 3 years imposed on count 1, (burglary). The total sentence was therefore three years' and two months' imprisonment. He was given leave of the full court to appeal against sentence in addition to appealing his conviction.
8. The principal ground of appeal against conviction is that the judge erred in allowing the trial to proceed in the appellant's absence. Mr Greaney very properly took us through the principles endorsed in Jones, which were not said to be exhaustive but provide an invaluable guide. They stemmed from a decision of this court in Hayward, Jones and Purvis [2001] QB 862. The circumstances to which a judge should have regard when faced with an application of this kind include (a) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it and in particular whether the behaviour was voluntary and so plainly waived the right to be present; (b) whether an adjournment would resolve the matter; (c) the likely length of such an adjournment; (d) whether the defendant although absent wished to be represented or had waived his right to representation; (e) whether the defendant's representatives were able to receive instructions from him and the extent to which they could present his defence; (f) the extent of the disadvantage to the defendant in not being able to present his account of events; (g) the risk of the jury reaching an improper conclusion about the absence of the defendant; (h) the general public interest that a trial should take place within a reasonable time; (i) the effect of the delay on the memories of witnesses; and (j [which does not apply here] where there is more than one defendant and not all had absconded the undesirability of having separate trials." The Practice Direction (Criminal Proceedings) Consolidation [2004] 1 WLR 58 at paragraph 1.13 covers the same situation and in effect applies the decision in Jones.
9. We have considered those principles with care. Much as we understand the judge's exasperation with the appellant, it is clear from his remarks he simply did not engage in any or any proper consideration of the principles identified, save for the questions of whether the appellant had voluntarily absented himself and whether or not counsel had instructions. The fact that he expected but a "token" objection from defence counsel perhaps demonstrates all too well he made up his mind almost as soon as he heard that an accused facing an overwhelming case had failed to turn up for his trial on a date of which he was well aware. The judge does not seem to have considered whether a relatively short adjournment would resolve the matter. A short phone call to the local constabulary might well have done the trick. Nor does the judge seem to have considered the likely length of any adjournment. This was, we note, a very short and simple trial. Any adjournment could itself have been short. There was no suggestion, Miss Hartshorn rightly conceded, of there being any effect of any delay on the memories of the two police officer witnesses. Finally, we note as the judge does not seem to have noted that this was a trial that had come on within six months of the commission of the alleged offence.
10. We see considerable force therefore in Mr Greaney's submission that the judge's approach was flawed in law. It is, as this court has observed on a number of occasions, an extreme step to order that a trial proceed in an accused's absence. Given what this court and the House of Lords has said in the past, a trial judge is obliged to take rather more care before taking such an extreme step than regrettably His Honour Judge Hoffman did on this occasion. We have considered all Miss Hartshorn's eloquent submissions but we are driven to the conclusion that we have no option but to say the judge was wrong to order the trial to proceed and the conviction for burglary must be quashed.
11. MISS HARTSHORN: My Lady, in those circumstances the Crown do have an application for a fresh trial. This is in the interests of justice.
12. LADY JUSTICE HALLETT: You know of course the nature of the argument is coming your way which is that he has served his sentence.
13. MISS HARTSHORN: Yes, my Lady, I do know that that is the argument coming my way, but my Lady I am really unable to say anything further about that, but those are my instructions.
14. LADY JUSTICE HALLETT: The failure to surrender to bail conviction still stands, so the two months still stands.
15. MISS HARTSHORN: Yes, my Lady. That is my understanding.
16. LADY JUSTICE HALLETT: Thank you. Mr Greaney?
17. MR GREANEY: My Lady, the argument is that which you anticipated, namely that this defendant has served his sentence and has been released. He was released, as I understand it, at the back end of September and a retrial would in those circumstances be a waste of public money.
18. LADY JUSTICE HALLETT: Thank you very much.

(Pause)

19. LADY JUSTICE HALLETT: Miss Hartshorn, we are prepared to accede to your submission that it is in the interests of justice to order a retrial, given that he has been released and therefore it is not a case of having to extend his time in custody. It is a serious matter, burglary of a dwelling-house. Therefore we will order a retrial. Very well. Our order is that we allow the appeal. We quash the conviction for burglary, solely. We direct that a fresh indictment be preferred. We direct that the appellant be arraigned on the fresh indictment within two months. The appellant will be granted unconditional bail. There will be a representation order for the retrial, Mr Greaney, which had better cover solicitors and of course an advocate.
20. MR GREANEY: Thank you, my Lady.
21. LADY JUSTICE HALLETT: The venue for the retrial should be determined by the presiding judge for the North Eastern Circuit. Mr Greaney, could you provide the court with an address for bail?
22. MR GREANEY: The answer is no. I do know that he has been in touch with those who represented him at the original trial.
23. LADY JUSTICE HALLETT: Maybe we should pause before ordering unconditional bail. Maybe we will make it a condition of his bail that he has to make an appointment to see his solicitors within a certain period. I think we had better impose some kind of conditions on this man.
24. MR GREANEY: The difficulty with imposing that condition is making him aware that there is that condition with which he must comply. I do recognise the difficulty. All I can say is that when he recently spoke to those who represented him at the original trial he was looking for further accommodation, but as I understand it did not have accommodation at that time. I do know that he has a keen interest in the outcome of this appeal and I expect he will be in touch with the solicitors today or within the next few days certainly.
25. LADY JUSTICE HALLETT: I wonder is there some kind of condition we can cobble together which says as soon as he is informed of the decision today he must attend upon his solicitors within -- (Pause) My Lord is adding a potential complication with that proposal that he may not want to be represented. I think that is unlikely but I agree that is a possibility and we cannot force legal representation on him. Miss Hartshorn, any thoughts?
26. MISS HARTSHORN: My Lady, I do not think I can helpfully assist on this particular point.
27. LADY JUSTICE HALLETT: The address 14 Trafalgar Square is that the right address for correspondence?
28. MR GREANEY: That was his fixed address at the date of the trial in March 2007. It is not --
29. LADY JUSTICE HALLETT: You use the term "fixed" loosely, I think.
30. MR GREANEY: I think in fact, as I understand the statement of the solicitor, that was where he was living at the time of the trial and he was not homeless in fact. He is not however living there now, that being rented accommodation which went when he went into custody.
31. LADY JUSTICE HALLETT: I think we are just going to have to leave it to fate.
32. MR GREANEY: I know the solicitors will do all they can to ensure he is aware of this outcome.
33. LADY JUSTICE HALLETT: Thank you very much. I do not think there are any other orders we can make.