QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE CRANE
|MAIDSTONE MAGISTRATES' COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR G POTTINGER (instructed by Director of Public Prosecutions) appeared on behalf of the DEFENDANT
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"Every effort to locate Defendant; aware of trial, known for some time; prosecution witnesses present, therefore proceed."
Counsel for the claimant in fact withdrew. A trial took place. The witnesses were heard and the justices convicted, giving reasons for their conviction as follows:
"1. He helped Safi Husayni by his physical presence, keeping close to her and preventing Lydia from getting away from his friend. This caused Lydia to be very frightened.
2. He was present when both assaults took place and must have been aware of what his friend was doing certainly after the first assault had taken place. We do not place any reliance on the lies given in evidence in the interview."
A warrant was issued for the claimant's arrest. He was arrested on the following day, 6th February. He was granted bail again and the matter was adjourned until 14th February.
"Notice of the trial was sent to you giving the date of the trial at your correct address and was not returned to the court. Other notices and letters were sent in English and were understood by you. You had the opportunity to attend court. An offence had been committed against a 13 year old girl in a public place and she would have been traumatised by the event. The magistrates made a decision at the time to hear the case on the consideration of the facts available to them. We do not find it in the interests of Justice to re-open the case."
"... otherwise all parties confirmed at the PTR that no problems are anticipated concerning your trial and it will go ahead as scheduled. If you are unclear about anything please do not hesitate to contact my colleague... "
The dates of the hearing, which was listed for three days from 5th February, were set out.
"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."
"If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant was represented and asks that the trial should begin. The Court of Appeal's check-list of matters relevant to the exercise of the discretion (see paragraph 22.5) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide."
He then added two observations. First, he did not think that the seriousness of the offence was a matter relevant to the exercise of the discretion and secondly, at paragraph 15, he expressed the view that it was generally desirable that a defendant be represented even if he had voluntarily absconded. Plainly that is an important factor.
"I pause there to say that there are a number of other factors set out which do not appear to be relevant to the present case. Of course in that case, the Court of Appeal was dealing with jury trials, but the principles that have been set out there do have some significance in this case."
At paragraph 16 he said:
"To my mind it must be made very clear that there is not any form of rule or any form of presumption that if a defendant is not present then the trial against him cannot proceed. But in this case there are special circumstances which I have just mentioned and which make it an exceptional case, particularly bearing in mind the fact that a new charge was being put, and the evidence on which reliance was placed at the hearing was different from what had been envisaged."
"Subject to the provisions of this Act, where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not, the court may proceed in his absence."
In section 142, to which I have already made reference, the Magistrates' Court has power under subsection (2):
"Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct."
There are thus two questions that we need to consider, namely the two decisions made by the magistrates.