Money laundering and trial in defendant's absence
Before : |
R. J. MacRae, Esq., Deputy Bailiff, sitting alone |
The Attorney General
-v-
Martin John Hill
Crown Advocate S. C. Brown for the Attorney General
Advocate I. C. Jones for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1. The Defendant ran two hotels through limited companies. The hotels were in the Isle of Wight. Between March 2014 and September 2016, he, through these hotels, fraudulently and dishonestly evaded Value Added Tax in the United Kingdom to the value of at least £350,000. On 23 September 2024, I was invited by the Crown to direct that the Defendant be tried in his absence pursuant to Article 88 of the Criminal Procedure (Jersey) Law 2018 ("the 2018 Law"). I now provide the relevant background to this application and explain my decision.
2. £94,794.15 of VAT evaded by the Defendant contributed to the purchase of a flat, No 5, 16 Prospect Road, Shanklin, Isle of Wight ("Flat 5"), which was owned by the Defendant between December 2014 and June 2016, when it was sold. The proceeds of the sale of Flat 5 were nearly £170,000. This was received into the Defendant's Barclays bank account in June 2016. In late June and early July 2017, seventeen separate transfers were made from this account to the Defendant's Tesco Internet Saver account. Between May 2017 and May 2018, nearly £260,000 was transferred from the Defendant's Tesco Internet Saver Account to a Santander Jersey bank account, including the proceeds of sale of Flat 5 which of course had been acquired via funds obtained as a consequence of the VAT fraud. These transfers were represented by Counts 1, 2 and 3 on the indictment which charged the Defendant with converting or transferring the proceeds of criminal conduct knowing or suspecting that the property represented the proceeds of such conduct. Ultimately, most of the funds held with Santander were transferred into a bank account in the Defendant's name in Spain with Caixa Bank. Counts 4 and 5 of the indictment represented possession or control of criminal property in respect of the entire credit balance of £340,913 held in the Santander account and the removal of that criminal property from Jersey knowing or suspecting the same to be the proceeds of criminal conduct when the sum of £340,500 was transferred into the Spanish bank account. Count 6 arose from the conversion of a smaller credit balance from pounds to euros in the Santander account. From January 2018, bank statements were sent by Santander to the Defendant's address in Alicante where he lives with his wife. He says the property is in his wife's name.
3. The Defendant was investigated in the United Kingdom for, inter alia, fraudulent evasion of VAT. He pleaded not guilty before the Magistrates' Court on 22 August 2018 but changed his plea to guilty on 15 April 2019 when he pleaded guilty in the Crown Court to three offences of being knowingly concerned in the fraudulent evasion of VAT contrary to Section 72 (1) of the Value Added Tax Act 1994 between 3 March 2014 and 1 September 2016. The Crown said when the Defendant was sentenced that this was a sophisticated series of offences owing to the way the Defendant manufactured sales invoices and submitted funds in a way intended to make them look like they were genuine VAT payments, and the "layering" of transfers intended to make the audit trail difficult to follow.
4. The Defendant pleaded not guilty to three counts of money laundering and transferring criminal property. These were left on the file on the usual terms.
5. The Defendant was sentenced on 10 June 2019 at Southwark Crown Court. The Defendant pleaded guilty on the "full facts". The Crown indicated that the Defendant had used funds he had fraudulently obtained to purchase the flat referred to above. The Crown referred to other property that the Defendant had purchased (with fraudulently obtained funds) in the Isle of Wight but did not refer to the subsequent laundering of any of the proceeds through the Santander account in Jersey and the subsequent transfer to the bank in Spain. The Attorney General says that the evidence showing the transfers to Jersey was not in the Crown's possession until the date fixed for the Defendant's confiscation hearing after the Defendant had been sentenced. The Crown submitted that the offence warranted a starting point of four years imprisonment, with a range of between two years six months and five years imprisonment and noted the Defendant had no previous convictions. His Honour Judge Tomlinson said that the Defendant had caused a substantial loss to the public purse in respect of "money that could and should have been used for purposes beneficial to society as a whole". Aggravating features were that the dishonesty involved two hotels, three limited companies, was carried on over an appreciable period of time and there was a degree of sophistication attaching to what the Defendant did.
6. The Defendant pleaded guilty late but was allowed 15% credit for his pleas. The judge said that had he been convicted by the jury he would have been sentenced to three years imprisonment, but in view of his plea the sentence was two and a half years imprisonment or thirty months. A confiscation hearing took place on 8 February 2022. In those proceedings the Defendant agreed a benefit figure of £800,000, and an available amount £550,217.05. The available amount comprised the value of one residential property, the balance of a restrained bank account and a 'hidden assets' finding to the value of £160,000 representing "accumulated funds removed from [a] Santander Jersey [account] to [an] undisclosed Spanish account".
7. The Defendant is before the Royal Court in relation to seven offences contrary to the Proceeds of Crime (Jersey) Law 1999 - offences of money laundering under Article 30 and Article 31 of the Law, including possession or control of criminal property, converting or transferring criminal property and removing criminal property from Jersey.
8. The Defendant was summonsed to the Royal Court pursuant to Article 3 of the Criminal Justice (International Cooperation) Law 2001 ("the 2001 Law") to appear before the Royal Court on 13 March 2024. Personal service was affected upon him at his workplace in Alicante, Spain, on 4 March 2024. Prosecution papers served upon him personally included a case summary, the indictment, a schedule of unused material, an explanation of the summons and its effect, the date, time and location of the hearing, relevant extracts from the 2018 Law, contact details for the Crown and information on how to obtain legal aid.
9. The full prosecution papers were uploaded to Caselines during the week of 4 March 2024. On 6 March 2024, the Defendant was added to the Caselines file giving him online access to all relevant material. Confirmation was received on that day that the Defendant had been given access to the file.
10. Accompanying the papers served on the Defendant in person on 4 March, was a letter from the Attorney General which said, inter alia, that the relevant summons did not impose an obligation under the law of Jersey to comply with it, and a failure to comply would not result in an arrest warrant being issued or amount to a contempt of Court, this being the effect of Article 3 (2) of the 2001 Law . A failure to comply with the summons would result in an attempt to extradite the Defendant from Spain. Furthermore, he was warned:
"Should you fail to attend on 13 March 2024 then I will seek to proceed with that (or any subsequent hearing) in your absence under Article 10(3) of the 2018 Law. That is a matter for the Court to decide:
Should you fail to attend the date fixed for your trial, then I will seek to prove the case in your absence under Article 88 of the 2018 Law. That is also a matter for the Court to decide."
11. The Defendant was also informed of his right to appear in person and to be represented by counsel.
12. On the Defendant's application and with the consent of the Court, he appeared by video link at the hearing on 13 March 2024 and on that day surrendered, albeit remotely, to the jurisdiction of the Royal Court. From that time, he has been within and subject to the jurisdiction of the Royal Court. He was represented by an advocate. He was not arraigned, and the hearing was adjourned on his application until 5 April 2024 for the purpose of his indictment. A plea and directions hearing was fixed for 1 May 2024 and, importantly, a trial date was fixed - in his presence - for 23 September 2024.
13. The Bailiff directed that the Defendant's credit for any plea he might enter on 5 April was preserved. He was also permitted to attend that hearing by video link. He was remanded on unconditional bail.
14. On about 26 March 2024, he dispensed with the services of his first advocate and the Court received an email from Advocate Jones on 28 March 2024 indicating that he had been instructed and seeking an adjournment until 17 April 2024. The Crown agreed to an adjournment until 12 April 2024. On 2 April 2024, the Court granted the defence application on the papers and adjourned the 5 April 2024 hearing until 12 April 2024. Again, the Court ordered that the Defendant may attend that hearing via video link.
15. After some further correspondence, the Court agreed to adjourn the plea and directions hearing until 1 May 2024. The case came before Commissioner Binnington on that day. Again, the Defendant appeared by video link but made an application to defer entering his pleas. His arraignment was adjourned until 31 May 2024 with the Court ordering that the Defendant should attend in person when he was to be indicted.
16. On 31 May 2024, the Defendant did not attend the hearing, stating the day before the hearing that he had been unable to arrange travel to Jersey as he was suffering from Corona virus. An application was made to adjourn all matters until a date in June.
17. The Court, consisting of Commissioner Binnington and Jurats, were not impressed with the Defendant's non-attendance. At paragraph 2 of his judgment, Commissioner Binnington said:
"2. It is not for Mr Hill to dictate to the Court when he appears and when he does not and the Court is particularly concerned that the explanation for his non-appearance was not communicated until yesterday. He could have made the application either at the plea and directions hearing or immediately after it, but instead it was left till yesterday when there was very little that anyone could do about the matter. From that point of view I have some sympathy with the Crown Advocate's descriptions of Mr Hill playing "ducks and drakes with this Court" and the Court regards that as a serious matter."
18. Nonetheless, the Court went on to hold that it was not going to order the Defendant's arrest, but went on to say "It must be made clear to Mr Hill that it is not for him to dictate to the Court when he appears and when he does not and the Court regards breaches of the Court orders as a particularly serious matter". The Court asked for a plea and directions hearing to be fixed not earlier than the end of June and required the Defendant to file his defence case statement and any skeleton argument seeking to stay the proceedings as an abuse of process prior to that hearing.
19. In any event, pursuant to the Criminal Procedure Rules, the Defendant should have filed his defence case statement some time before this hearing.
20. The Court gave the Defendant leave to appear by video link at the adjourned plea and directions hearing. As to the Defendant's arraignment, the Court noted that Advocate Jones had raised that he would be inviting the Court to stay the proceedings as an abuse of process on the grounds of autrefois convict. In respect of credit for guilty pleas, Commissioner Binnington said at paragraph 8 that that was "something that will have to be dealt with in due course by the Court".
21. The Defendant was again released on unconditional bail. The next hearing was on 17 September 2024, six days before trial. The Defendant did not attend by video link. He said he was travelling in Spain and, owing to his work commitments, was unable to attend the hearing. Defence counsel confirmed to the Court on no less than three occasions that the Defendant knew that the trial was due to take place on Monday 23 September 2024 and that the Defendant knew he was required to attend the trial. The Court directed that he arrive in Jersey no later than noon on the Friday before trial for the purpose of giving instructions to his advocate and added a condition of residence at the home he shares with his wife in Alicante to his conditions of bail. The Court directed that the Crown proceed on the footing that the Defendant had entered a plea of not guilty to the indictment. The Crown confirmed that on 29 August it had served on Defendant's counsel all the material required for the purpose of the trial, namely draft admissions, the Crown's application to adduce hearsay evidence, an amended indictment and a draft Jurat Bundle index. Accordingly, the Crown had been trial ready for some time.
22. On 20 September 2024, the Defendant made an unsworn written statement which his counsel provided to the Court and the Crown over the weekend prior the day scheduled for the commencement of the trial. In that statement, the Defendant said that he knew he was required to come to Jersey by noon on 19 September 2024. He said "I confirm that I have made the decision not to comply with this bail condition and accept that in so doing that will place me in breach of the bail granted to me by the Royal Court".
23. He went on to say "I do not intend to travel to Jersey for the commencement of my trial on Monday the 23rd September and understand that to the extent this means that the Royal Court considers appropriate to conduct the trial in my absence it may well do so".
24. He went on to say that "with regret" he was going to "actively refuse to comply with the extant orders of the Royal Court" but his decisions were not intended to be disrespectful or contemptuous. His statement went on to say that he had already been convicted of VAT fraud as a consequence of his guilty plea. He suggested that his criminal conduct, including money laundering, had been taken into account by the English Court and he had been sentenced accordingly. He said that following his sentencing there was a complicated process which led to him repaying / returning in excess of £500,000 and all, save for £35,000, had been repaid. He said he had rebuilt his life with his family in Spain and he did not wish to come to Jersey.
25. He accepted that he had not been convicted of money laundering but said that he had been punished for it. He said he had no assets to pay any confiscation orders. He noted that he not yet been arraigned and he went on to say that he would in principal be prepared to plead guilty to the indictment and participate in a sentencing process, but was concerned about the prospect of receiving a custodial sentence of some length and had sought, without success, assurances from the Jersey authorities that a custodial sentence would not be sought in his case and that there would be no attempt to extradite him to Jersey. If such assurances were given, then he "could accept criminal liability and then participate in any consequential confiscation process".
26. He went on to detail various difficulties that he had with his health, describing himself as being "not in particularly good health".
27. The Defendant concluded by saying that he had instructed Advocate Jones to appear for him but had given him no instructions to put forward any positive defence. He concluded by saying "I understand that the Court will most likely be unimpressed with the position that I have chosen to take and likely take a dim view of my conduct".
28. It is a moot point as to whether or not it was possible to try a defendant on indictment in his absence pursuant to the Loi (1864) Reglant la Procédure Criminelle.
29. That matters not, as the position is now governed by the 2018 Law. Article 88 provides:
"88 Defendant's duty to attend trial and trial in defendant's absence
(1) Unless the court excuses a defendant from attending his or her trial, a defendant is otherwise required to be present at court throughout his or her trial.
(2) The court may, subject to paragraph (3), proceed to try the defendant in his or her absence if that defendant chooses not to exercise his or her right to be present at his or her trial by voluntarily absenting himself or herself from the court at the beginning of, or during his or her trial.
(3) Before the court decides to proceed to try a defendant in his or her absence, the court shall have due regard to the interests of justice which shall include consideration of such of the following factors as appear to the court to be relevant -
(a) the conduct of the defendant;
(b) the disadvantage to the defendant;
(c) the public interest that will weigh in favour of commencing or continuing the trial taking account of the inconvenience and hardship -
(i) to witnesses and especially to any complainant, of a delay to the trial,
(ii) to witnesses who have attended court and are ready to give evidence;
(d) the effect of any delay;
(e) whether the defendant is off the Island;
(f) whether the attendance of the defendant could be secured at a later hearing;
(g) the likely outcome if the defendant is found guilty,
as well as any other factors which also appear to the court to be relevant.
(4) If a defendant is convicted in his or her absence, the court shall endeavour to secure that he or she is present at any sentencing hearing and, so far as is reasonably practicable, arrange for the defendant to be legally represented at that hearing."
30. Article 88 sets out the approach that the Court needs to take to these decisions and in the circumstances there is perhaps little merit in considering the case law of other jurisdictions. Nonetheless, the decision of the House of Lords in Regina v Jones [2002] UKHL 5 was drawn to my attention and I refer to it briefly by way of background. In R v Jones, the House of Lords held that a defendant could be tried in his absence on indictment. It was noted in the leading judgment given by Lord Bingham that (at paragraph 6) the law of England and Wales recognised the right of a defendant to attend his trial and imposed an obligation upon him to do so. He reviewed the European Court of Human Rights case law and noted from that case law (paragraph 8 of the judgment) that a fair hearing required a defendant to be notified of the proceedings against him, the person should as a general principle be entitled to be present at his trial, that the defendant in a criminal trial should have the opportunity to present his arguments adequately and participate effectively, and that a defendant should be entitled to be represented by counsel at trial and on appeal.
31. Having recited these principles, Lord Bingham said (paragraph 9):
"All these principles may be very readily accepted. 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.... There is nothing in the Strasbourg jurisprudence to suggest that a trial of a criminal defendant held in his absence is inconsistent with the Convention."
32. At paragraph 11, Lord Bingham 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."
33. As regards to the relevant principles and procedures upon which a Court should act, Lord Bingham made the following observations at paragraphs 13 to 15:
"13. I would accordingly answer Yes to the certified question and dismiss this appeal. In doing so I would stress, as the Court of Appeal did in paragraph 22 of its judgment, at pp 135-136, that the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. 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 is represented and asks that the trial should begin. The Court of Appeal's check-list of matters relevant to exercise of the discretion (see paragraph 22(5)) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide. I would add two observations only.
14. First, I do not think that "the seriousness of the offence, which affects defendant, victim and public", listed in paragraph 22(5)(viii) as a matter relevant to the exercise of discretion, is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor.
15. Secondly, it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing the appellant at trial in this case. But the presence throughout the trial of legal representatives, in receipt of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight. For this reason trial judges routinely ask counsel to continue to represent a defendant who has absconded during the trial, and counsel in practice accede to such an invitation and defend their absent client as best they properly can in the circumstances..."
34. It is of note that the relevant considerations in Article 88 also do not include consideration of the seriousness of the offence. It was submitted before me that although not listed as a relevant factor in Article 88(3)(a) to (g), the seriousness of the offence is a matter that the Court ought to have regard to when considering the "interests of justice" under Article 88(3). This may well be right as there is a material difference between a trial in a defendant's absence when the allegation is a parking offence and a trial in the defendant's absence when the allegation is murder. Perhaps the seriousness of the offence is in any event implicitly listed as a consideration as the Court needs to consider the likely outcome if the defendant is found guilty under Article 88(3)(g).
35. I agree with Lord Bingham's second observation that it is generally desirable that the defendant be represented even if he has voluntarily absconded. In this case, Advocate Jones indicated that although he may not be fully instructed, he was instructed to and prepared to attend the trial on behalf of the Defendant.
36. Lord Hutton said at paragraph 38 that the discretion of a judge to proceed with the trial in the absence of the defendant is one to be exercised with "great care". I agree with that observation.
37. It is also clear from the English authorities (see R v Lopez [2013] EWCA Crim 1744 (Court of Appeal)) that it is essential that the judge has material on which to base a decision that a defendant has deliberately and consciously chosen to absent himself from the proceedings before such a finding can be made.
38. In R. v Pierini and Anor [2023] EWCA Crim 1189, the English Court of Appeal considered the position of an appellant who voluntarily absented himself from his trial when resident in Dubai but sought to attend the trial via live link. Singh LJ recounted the events of a hearing before the first day of the trial at paragraph 36:
"36. A hearing took place on 1 February 2022. The applicant attended by video link from Brazil. His counsel told the judge that he had been advised of the consequences if he did not attend the trial, but that he was unable to travel to the United Kingdom because "he has no money." The judge addressed the applicant directly and told him that he should "get on a plane now" and attend his trial, and indicated that otherwise he might be tried in his absence. The applicant apologised and said he had "no money and nowhere to stay.""
39. The defendant failed to attend in person for his trial and the judge refused an application to attend his trial via the link. He elected to proceed in the absence of the defendant. The appellant that the refusal to let him participate via video link was unfair. Singh LJ said:
"66. Polanski makes it clear that there is no material distinction between a litigant who is a fugitive from justice in respect of criminal proceedings in another country and a litigant who is a fugitive in respect of criminal proceedings for an offence committed in the United Kingdom. Here, however, the applicant was not just a fugitive in respect of an offence committed in the United Kingdom, he was a fugitive from the very proceedings in which he was seeking to participate from abroad. He was thereby in breach of a statutory obligation to surrender to custody and a court order. He was committing a criminal offence. If his application to participate by live link, instead of attending in person, had been granted, then that would amount to the court condoning the applicant's continued offending under the Bail Act. It would have permitted the applicant to give evidence on his own terms, flagrantly flouting his obligation to surrender to custody. It would mean that the applicant would stand to gain the potential advantage of participating as a defendant in criminal proceedings and seeking an acquittal, without being in any immediate jeopardy of punishment in the event of conviction.
67. For these reasons, granting the application would have diminished the court's authority to require compliance with the law. It would have been an affront to the legal integrity of the proceedings and would undermine public confidence in the criminal justice system, bringing it into disrepute. It would have been contrary to the interests of justice. The judge was right to conclude that it was not in the interests of justice to grant the application.
68. We do not consider that there is merit in Mr Wainwright's subsidiary submission that the applicant should have at least been permitted to view the proceedings by live link, even if he was not permitted to give evidence. The same objections apply. It would have been contrary to the interests of justice to allow such an application for the same reason. There was no unfairness to the applicant. It was his choice to commit a criminal offence, and to challenge the court's authority, by failing to surrender to custody: R v Jones [2002] UKHL 5; [2003] 1 AC 1 per Lord Bingham at [11]." (Referred to at paragraph 32 above)
40. In this case, the Defendant did not offer to attend the trial remotely by video link and the Court will need to determine what its reaction would be in relation to such a proposal if and when an opportunity arises.
41. Further, in Regina v Peter Pomfrett [2009] EWCA Crim 1939, the English Court of Appeal held (see paragraphs 80 and 81 of the judgment of Richards LJ) that it was proper for defence counsel to continue to receive instructions from the absent defendant and act upon them, notwithstanding the fact that the defendant had absconded and was being tried in his absence.
42. I now turn to consider the criteria under Article 88.
Both counsel agree that the Defendant had voluntarily waived his right to attend the trial. In the circumstances it was unnecessary to determine whether or not the Crown were correct to say that the Defendant had been playing procedural games until his trial.
The Crown accepted that the Defendant would be disadvantaged by failing to attend his trial. He had not been interviewed and had chosen not to serve a defence case statement. As he was absent, he would be unable to give evidence and the Jurats would not know what his case was beyond the contents of his letter to the Court received shortly before trial, which the Crown said they would apply to adduce in part (although not to include his suggestion that he was prepared to plead guilty). Most of the prosecution evidence would be unchallenged by defence counsel as owing to, inter alia, the fact that defence counsel's instructions were limited.
The Crown said this was an allegation of professional money laundering which needed to be dealt with in order to protect the reputation of the island as a finance centre and that the key witnesses of the Crown were both professionals who had come to Jersey for the week in order to give evidence. The trial was listed for five days.
The Crown said that the effect of the application failing would be that the trial would be postponed pending the Defendant's extradition to Jersey which might, on the material placed before the Court, take between six and twelve months, perhaps longer. Defence counsel said in respect that these were not recent offences and the criminal conduct in question took place seven or eight years before. The Defendant had paid most of the sum that was due to be confiscated under orders made by the English Court and the relative delay in this case was minor. Defence counsel said there was no family waiting for justice, and the additional delay caused by extradition proceedings would be of minimal importance in the context of this case.
The Defendant lives in Spain and according to defence counsel had never been to Jersey.
The Crown accepted this was possible but only by the way of extradition which would, the Crown said, be subject to ministerial approval in Spain. The defence said that the Crown's evidence in relation to the extradition process was thin, that up to twelve months was not a very long time and that the Court should proceed on the basis that the Defendant's attendance could be secured in due course. The defence said the time to make the Article 88 application was when there had been a failure to extradite the Defendant and the reasons for such failure were known. The Crown said the Defendant submitted to the jurisdiction of the Royal Court when he was admitted to bail on 13 March and had now deliberately broken his bail as well as failed to attend trial.
The likely outcome is a custodial sentence.
43. Having regard to all the circumstances of this case and the factors set out above, I was of the clear view that it was in the interests of justice for the Defendant to be tried in his absence. The fact that the Defendant had voluntarily waived his right to attend his trial in full knowledge of the trial date was a significant factor in reaching that decision. It was not, in my view, in the public interest for the witnesses to be required to attend again or in the public interest, bearing in mind the number of Royal Court cases that are waiting to be tried and need to be tried, for a week in the Court's busy diary to be lost and for the trial to be postponed for a year or so and to be re-listed in preference to another case at that time. Consideration of the public interest always involves consideration of the resources available to the Court which in the event is a factor that the Court is entitled to take into account by virtue of Article 88(3) of the 2018 Law.
44. Although not relevant to the exercise of the Court's discretion, the Defendant ultimately pleaded guilty to six of the seven counts by video link later the same day and a date for sentence was thereafter set.
45. Finally, I observe that had the trial proceeded then the Jurats would have been directed that the Defendant was absent from the trial and that his absence could not be held against him. They would have been told the Defendant was absent as he had elected not to attend his trial. In certain circumstances, it would not be appropriate or possible to tell the Jurats or jury of the reason for absence as that might alert the tribunal of fact to material adverse to the Defendant. The Jurats would have been directed that they could not hold the Defendant's decision not to attend his trial against him or treat it as providing any support for the prosecution's case.
46. Such directions would be repeated in the summing up at the end of the trial.
Authorities
Criminal Procedure (Jersey) Law 2018.
Proceeds of Crime (Jersey) Law 1999.
Criminal Justice (International Cooperation) Law 2001.
Loi (1864) Reglant la Procédure Criminelle.
Regina v Lopez [2013] EWCA Crim 1744.