England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		26th January 2016

Tuesday 26^th January 2016

LORD JUSTICE BURNETT:

Introduction

1. The issue in this appeal is whether the Recorder was right to continue the appellant's trial in circumstances where the appellant had deliberately and repeatedly rendered himself incapable of giving evidence or of taking a meaningful part in his trial through the voluntary ingestion of drugs.
2. The appellant faced an indictment containing two counts at the Crown Court at Stoke-on-Trent before Mr Recorder Butterfield QC and a jury. His co-accused was his partner, Sharon Leadbeater. She faced the first count only. The first count alleged assault, contrary to section 47 of the Offences Against the Person Act 1861; and the second, racially aggravated intentional harassment, contrary to section 31(1)(b) of the Crime and Disorder Act 1998.
3. On 12th June 2015 the co-accused was acquitted on count 1, but the appellant was convicted of the alternative offence of common assault. He was acquitted of the disorder offence. On 3rd July 2015 he was sentenced to a community sentence.
4. Other than the nature of the injuries inflicted, which led to the conviction of the lesser offence, the issue before the jury on count 1, as regards the appellant, was self-defence.
5. The incident which gave rise to the counts on the indictment had occurred on 24th May 2014. The appellant returned to Miss Leadbeater's address, which was owned by the partner of the man who was said to have been assaulted. Underlying the incident was the fact that Miss Leadbeater had been given notice to leave the flat. The prosecution case was that the appellant was drunk and attacked the complainant, Mr Simpson, after he refused him entry to the property. The prosecution case relied upon Mr Simpson's evidence, along with footage recorded on a mobile phone by witnesses, the evidence of a number of witnesses, and the appellant's bad character.

The Trial

6. The trial started on Tuesday 9th June 2015. When he arrived at court, the appellant was under the influence of drugs. He was represented at trial, as he is before us, by Miss Wallbanks. Over the four days that the trial lasted, Miss Wallbanks was faced with great difficulty as a result of the condition of the appellant. She dealt with those difficulties impeccably. She made a number of applications designed to protect the appellant's interests and took advice from the Bar Council in respect of her professional position. On the last day of the trial she considered withdrawing from the case, but was dissuaded from doing so by the Recorder. Ultimately it is a matter for counsel, rather than the judge, whether counsel is professionally able to continue to act, albeit that a judge might express a view and seek to persuade.
7. The appellant's condition on the first day of trial was such that Miss Wallbanks considered that he was in no fit state to give her instructions. She had doubts whether he was able to follow what was going on and take a meaningful part in the trial. She sought an adjournment to obtain a medical report on his condition. We are told that there was some discussion about whether a police surgeon might attend court to determine whether the appellant was fit to stand trial. However, there is no arrangement between the Court Service and doctors which enables that to happen.
8. The Recorder decided that the trial should start, that the prosecution would open the case, and that the first witness, Mr Simpson, would be called. In the event that cross-examination were reached, it would have been possible for Miss Wallbanks to cross-examine on the basis of her existing instructions and the detailed account of events contained in the appellant's interview. The Recorder indicated on that first day that the trial would proceed with the appellant having breaks to assist him. He (the Recorder) would watch closely to see whether there was any improvement or deterioration in the appellant's condition. They would "take stock" if Miss Wallbanks needed to take any further instructions. He suggested that Mr Simpson should not complete his evidence on that first day and should, come what may, return the following morning. In fact, it was necessary for the witness to return the following morning because cross-examination was not reached until then.
9. In the light of his condition, the Recorder remanded the appellant in custody overnight in the hope that he would be kept away from illicit substances and thus be fit to take a full part in proceedings the following day.
10. On 10th June (the second day of the trial) the appellant returned to court from prison. As the Recorder noted in a later ruling, on that day he did not exhibit the problems that had manifested themselves on the first day of trial. There was no difficulty on the second day. The prosecution continued with its evidence. The prosecution case was completed, with the appellant taking an appropriate part in the proceedings. At the end of the prosecution case an unsuccessful application was made that the appellant had no case to answer. That application was rejected, but it plays no part in this appeal.
11. At the end of the second day, the Recorder once more remanded the appellant in custody overnight.
12. Whilst in custody overnight, the appellant was prescribed methadone to assist him with his addiction. However, when he arrived at court the following morning (the third day of trial) he was obviously in an intoxicated state. He was not suffering from withdrawal symptoms from heroin, but had somehow managed to obtain and take illicit drugs whilst in custody. In broad terms, his condition was similar to that which had been witnessed by Miss Wallbanks and the Recorder on the first day of the trial. On any view, he was not fit to give evidence. The stage in the trial had been reached where he was expected to give evidence if that was his choice.
13. On the basis of information provided by the prison relating to the prescription of methadone, and such information has not been the subject of dispute, it was clear to the Recorder that the appellant's condition did not result from the low dosage of methadone he had been prescribed, but from the consumption of illicit drugs.
14. There followed discussion as to what should occur. The co-accused was called to give evidence out of turn. Whilst she was giving her evidence, which was entirely supportive of the case that the appellant ran on the assault count, the Recorder permitted the appellant to remain in the cells. The appellant had a meal whilst he was there and was able to sleep. The hope, no doubt, was that by the time the co-accused had finished her evidence he would be in a fit state first to decide whether to give evidence, and secondly, to give that evidence if it was his choice.
15. At the start of the afternoon session Miss Wallbanks applied for the jury to be discharged so that a psychiatric report might be obtained on the appellant. His condition had not substantially improved. The Recorder's view was that there was no basis for thinking that the problems that had been displayed by the appellant, now over two out of three days, were the result of a psychiatric condition. There was no suggestion of a previous psychiatric history. The Recorder's view was that the problem appeared to be the result of the voluntary ingestion of drugs. In the course of dealing with this part of the series of applications from Miss Wallbanks, the Recorder continued:

"We are at the start of an afternoon now. He [the appellant] is, therefore, at the point furthest away from his ability to obtain drugs, which, sadly, it seems he is able to do at prison. He has also been given a meal. He has been given the ability to sleep, and he has slept, indeed for substantial parts of the morning. And the difficulty is that if one adjourns to give him time to get his head clear, he may just go back to prison, again obtain and ingest illicit substances, and continue to be in a state that is less than ideal repeatedly. And the trial cannot be held hostage in that way; that would not be appropriate as a matter of principle. But the position is particularly acute because he has a co-accused, who, understandably, wants to know her fate and wants the trial to continue. There are also the interests of the prosecution, who say, understandably, that they wish both defendants to be tried together.

We have made substantial progress in the trial, in the sense that we have heard and concluded the Crown's case, and Miss Leadbeater, who would normally be the second defendant to give evidence, has in fact given evidence. She did that out of turn in an effort to provide [the appellant] more time to recover, as I have reviewed."

16. The appellant continued to appear to be unfit to give evidence. In consequence, an hour later (or thereabouts) Miss Wallbanks made a fresh application for a medical report directed towards his fitness to stand trial. The Recorder refused that application. He referred back to the nature of the appellant's problems, and he was also concerned about the position of the co-accused. There followed a lengthy discussion about Miss Wallbanks' professional position, during which she made clear that her submission was that, as a matter of fairness, the appellant should be seen by a doctor.
17. As it happens, the court could not sit beyond 4pm that afternoon because of a difficulty with one of the jurors. In those circumstances the Recorder said this:

"So, not without misgivings, perhaps the most practical way to try and break through the impasse is to adjourn the case at this point and seek to review at ten tomorrow. Bearing in mind the difficulties that have been described to me, I do direct that the [appellant] is seen by a GP (or equivalent) overnight, to provide this court tomorrow with information about whether he is fit to stand trial.

What I will not promise, I am afraid, is any more adjournments for the morning. So if there is any further consultation that you feel you need to make professionally, Miss Wallbanks, you had better do that overnight. But, as I say, bearing in mind we are effectively at the end of the court day, then, on reflection, that seems to me one practical way we can seek to address matters."

18. Once more the appellant was remanded in custody overnight. He did not attend trial on the morning of the fourth day because it was the view of the medical authorities at the prison that he was unfit to travel. The Recorder's direction was complied with by the medical authorities at the prison. Medical evidence was provided to the Recorder the following morning by way of email. The appellant had once again managed to ingest illicit substances, with the result that he was not fit even to leave the prison. Miss Wallbanks again applied for the jury to be discharged, at least as regards the appellant. That potential way of dealing with the difficulty was ventilated at two different stages during the morning of the fourth day. In broad terms, the position of the co-accused was that she wished the trial to continue, at least against her. The position of the prosecution was that it wished the trial to continue against both or neither.
19. The Recorder refused the application to discharge the jury in respect of the appellant. The core of his reasoning is found in this passage from his Ruling:

"This is a trial of [the appellant] and Sharon Leadbeater. It is Friday 12^th June. The case began on Tuesday of this week on which date [the appellant] turned up in a state not appropriate to attend court because he had ingested illegal substances that crystallised concerns he would fail to attend and I remanded him in custody. There was no difficulty the following day but on the third day of the trial, yesterday, despite being in custody he had managed to ingest further illicit substances and again put himself in no fit state to properly attend his trial. He has done the same thing overnight and I have medical evidence now that he is suffering from symptoms from ingestion of an unknown substance, that they are not consistent with withdrawal from drugs. In other words, he is repeatedly and voluntarily putting himself in a position to destabilise this trial and I can only conclude that that is deliberate. It is not appropriate to permit a defendant to benefit from that position. There is no indication he is psychiatrically unwell. There is every indication that his condition is purely due to his own decision to continually ingest illicit substances.

In those circumstances I am not minded to discharge the jury in respect of either defendant, and the trial will continue against both. It would be the time that normally he would be entitled to give evidence. It has been his own actions and his own decisions that have meant that he is not in a position to do that. The trial will carry on directly to speeches, bearing in mind we have already had the evidence of the other defendant."

20. There was further discussion about whether Miss Wallbanks should withdraw. As we have noted, she was minded to withdraw, but the Recorder disagreed. In the result, Miss Wallbanks remained. There followed a discussion about whether it was appropriate for the Recorder to give an adverse inference direction in respect of the appellant's failure to give evidence. He made it clear that he was minded to do so. Miss Wallbanks persuaded him to change his mind. In due course he gave the jury a direction that they should not hold the appellant's absence from parts of the trial or his failure to give evidence against him in any way. Miss Wallbanks made a closing speech. It was plainly effective, given that the appellant was acquitted on count 1, and on count 2 the jury accepted her argument relating to the quality of the injury sustained by Mr Simpson.
21. The Recorder reminded the jury of Miss Leadbeater's account, and they had the appellant's interview before them. In that interview the appellant had accepted that there had been an altercation involving Mr Simpson, but was adamant that Mr Simpson was the aggressor and that he had threatened both the appellant and the co-accused with a baseball bat.

Submissions

22. Miss Wallbanks submits that the trial was unfair because the appellant was unable to present his account of events, in particular because the Recorder allowed the trial to continue when the appellant was absent and during periods when, although he was present, he was temporarily incapacitated. She submits that the Recorder should have acceded to the earlier application for a medical report. She points to a seam of jurisprudence of the Strasbourg Court on Article 6 of the European Convention on Human Rights, in particular Ekbatani v Sweden (1988) 13 EHRR 504, which emphasises the cardinal importance of the right of an accused to be present at, and take a full part in, criminal proceedings.
23. Mr Franck, who appears for the Crown as he did below, submits that the trial was fair. He refers to the decision of the House of Lords in R v Jones (Anthony) [2003] 1 AC 1, and submits that, whilst the Recorder did not identify this authority in terms, his reasons for continuing with the trial show that he had the correct matters in mind. The Recorder's decision, submits Mr Franck, was not wrong.

Jones

24. The certified question in Jones was:

"Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?"

The outcome of the appeal was unanimous in that the answer was: Yes. In rejecting the arguments advanced by the appellant, all members of the Judicial Committee agreed that the approach of the common law marched in step with the Convention. They also agreed with Lord Bingham's explanation of the common law. At paragraph 6 of his speech, Lord Bingham noted that for many years problems had arisen where a defendant had been present at the beginning of the trial, but becomes absent before the end. Those, of course, are the circumstances of this case. He cited a number of previous decisions which recognised a well-established discretion to continue in those circumstances or to order the discharge of the jury. He continued:

"6. … In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well-established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond."

A similar discretion (see paragraph 7) had more recently been recognised in circumstances where a defendant failed to attend his trial.

25. At paragraph 8 Lord Bingham summarised the effect of the Strasbourg jurisprudence, including Ekbatani, and accepted the principles those cases established. He concluded:

"9. … They are given full effect by the law of the United Kingdom. But the European Court of Human rights has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued. In the Ensslin case, in which proceedings were continued during the absence of the defendants caused in large measure by self-induced illness, the proceedings were held to have been properly continued."

26. Jones was a case where the appellant did not respond to his bail and so did not attend his trial at all. Lord Bingham could discern no difference in principle between continuing a trial in the absence of a defendant and beginning a trial in his absence. He identified practical differences which included the need to have witnesses back if the trial has started, but collapses; and other waste of time and money in those circumstances which might be avoided if a trial was never started. Those were matters which went to the exercise of discretion. In paragraph 11 he dealt with the kernel of the submission advanced in support of the contention that a trial in the absence of a defendant would necessarily be unfair. He said:

"11. Counsel for the appellant laid great stress on what he submitted was the inevitable unfairness to the defendant if a trial were to begin in his absence after he had absconded. His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, as happened in this case. Thus there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. The trial would be no more than a paper exercise (as Judge Holloway at one point described it) almost inevitably leading to conviction. The answer to this contention is, in my opinion, that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.

12. Considerations of practical justice in my opinion support the exercise of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way."

27. The Court of Appeal in Jones [2001] EWCA Crim 168, [2001] QB 862, at paragraph 22(5) had set out a non-exhaustive list of factors which were relevant to the exercise of the discretion whether to start or continue a trial in the absence of a defendant. That list was endorsed, save in one respect, by the House of Lords. It is as follows (with the necessary amendment):

"... 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) …; (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."

Thus, Jones confirms that a judge has a discretion to continue a trial in the absence of a defendant.

28. This position is reflected in Criminal Practise Direction Part 19E.1 and following which explains the discretionary nature of the decision and draws attention to Jones.

This Case

29. The appellant was absent from his trial for the periods in which he remained in the cells, recuperating from his self-induced intoxication, and also on the last day. In our judgment there is no reason of principle to distinguish between a temporary absence from trial and a temporary inability to participate fully in the trial process, both the result of the voluntary ingestion of drugs. The same would apply were a defendant repeatedly to turn up at trial so drunk as to be unable to participate.
30. At the forefront of the consideration of the fairness of the trial of both the Court of Appeal and the House of Lords in Jones was whether the defendant's absence from the whole or part of the trial was voluntary, including whether a condition was self-induced. A similar consideration has weighed with the Strasbourg Court, as is apparent from Lord Bingham's citation of Ensslin. In Jones there was discussion in the various speeches about whether such circumstances should properly be considered as "waiver" – a concept with precise meaning in domestic law. But, whatever label was attached to it, there was a marked reluctance to allow a defendant in criminal proceedings to manipulate them by voluntarily putting himself into a condition which prevented full participation.
31. In our judgment, an appropriate enquiry is needed into the cause and effect of such intoxication before a judge could properly decide to proceed without the participation of a defendant. Such intoxication could, for example, be due to anxiety or lack of awareness of the consequences of ingestion. However, we are satisfied that the Recorder fully investigated the issue. He was entitled to conclude that the state of intoxication on the final day of the trial was not merely self-induced, but was done voluntarily; it was calculated to frustrate the trial.
32. In those circumstances the concern of Miss Wallbanks as to the appellant's capacity was less significant than the reason why he had no capacity.
33. The Recorder's reasons for refusing to adjourn the case, when on the final day the appellant was again incapable through the ingestion of drugs were, first, the fact that his condition was voluntary. The Recorder had remanded him in custody in the expectation that he would be denied access to drugs, save methadone, which was administered at a level designed to improve his condition. That appeared to work for one day. But thereafter it was intoxication, not withdrawal symptoms, which the appellant displayed. From where he obtained those drugs is unknown. The Recorder had earlier come to the conclusion that his problems were self-induced. That conclusion was confirmed by the medical evidence which was received by the court on the last day of trial.
34. The second broad reason was the impact of discharge on the trial of the co-accused, and more generally the undesirability of a second trial.
35. Those matters were rightly reasons at the forefront of the Recorder's thinking, particularly when the first application to discharge the jury was made. It is true, as Miss Wallbanks reminded us, that on the last day the Recorder might have discharged the jury in respect of the appellant and not the co-accused, because she had given her evidence and the trial could continue against her. However, the question for the Recorder was whether, in the light of the circumstances generally pertaining, to carry on with the trial in the way he did was fair to the appellant. The Recorder concluded that it was. He was right to do so.
36. True it is that the Recorder did not refer to the list approved by the House of Lords in Jones, although he focused on the important questions whether the problems with the appellant were self-induced, and the undesirability of separating the trials of the appellant and his co-accused.
37. In our judgment, had the Recorder addressed the other factors, rather than undermining his conclusion, it would have been reinforced. On point (iii), adjournment would not have provided a clear basis for assuming that the appellant would be any better either a day or two later, or at a future trial, even if he were remanded in custody. On the contrary, his conduct tended to suggest that he could manipulate the process. We would add, if he had succeeded once in securing an adjournment in those circumstances, his motivation for trying to repeat his performance would be strong.
38. On points (iv) and (v), the Recorder persuaded Miss Wallbanks to continue to represent the appellant. Although once again it appears that neither he nor counsel had Jones in mind, that is something which Lord Bingham commended in paragraph 15 of his speech. Miss Wallbanks had cross-examined the complainant, Mr Simpson, on self-defence in accordance with her instructions. She was able to cross-examine the remainder of the prosecution witnesses in the presence and with the participation of the appellant. The appellant's interview was before the jury.
39. On point (vi), we recognise that there may have been some disadvantage to the appellant in not giving an account in evidence as a result of his voluntary intoxication, particularly in a case where the defence to count 1 was one of self-defence. In this case, by reference to point (vii), there was no risk that the jury would reach an improper conclusion regarding the appellant's absence given the appropriate directions given by the Recorder. On the final points, the impact on witnesses, at whatever stage of the four day trial the Recorder might have acceded to the applications to discharge, would have been to require them to return to court. That is always undesirable. So, too, would have been a split trial, for its impact on witnesses, the co-accused and the prosecution.
40. For all these reasons we have concluded that the Recorder was right to insist that the trial should continue on its first day, and to reject the applications to discharge the jury on the third and fourth days. It is clear from the various transcripts that we have that the Recorder took the view that the appellant was clearly intoxicated with drugs on the first day of trial. His action in remanding the appellant in custody overnight at the end of the first day was appropriate and vindicated by the change in the appellant's demeanour on the second day. The Recorder reversed the order in which the defendants in the trial would usually have given evidence, in the hope that by the afternoon of the third day the appellant would have recovered sufficiently to be able to give evidence, if he wished. That did not happen. But time had passed so that the case was again adjourned in the hope that he would be fit on the morning of the fourth day. Medical evidence was directed and obtained. Its effect confirmed the Recorder's view that this was a case of deliberate self-intoxication, providing a worrying example of how easily someone like this appellant was able to obtain illegal drugs in prison.
41. On the last day, albeit that the appellant was not present to give evidence, the Recorder persuaded Miss Wallbanks to continue to represent him. The transcript shows how effective her continued representation was in persuading the Recorder to change his view about the adverse inference direction he was minded to give. The verdicts suggest that Miss Wallbanks' closing speech had its effect.
42. Looking at all the circumstances, and applying the principles that we derive from Jones, we are satisfied that this was a fair trial. Accordingly, the appeal will be dismissed.