Factual and Procedural Background
There are three cases before the court in which the defendants were tried by judge and jury in their absence. The appellants in two cases obtained leave to appeal against their convictions, and the third defendant renewed an application for leave to appeal following refusal by a single judge. All three renewed applications for leave to appeal against sentence were also refused by the single judge. The cases involve defendants who absconded or otherwise failed to attend trial, leading to trials proceeding without their presence or representation.
The first appellant was convicted on multiple counts related to fraudulent evasion of customs duty and was sentenced to imprisonment. After absconding while on prison leave, a retrial proceeded in his absence, resulting in conviction on remaining counts and an extended sentence. The appellant appeals against the conviction on the ground that the trial judge erred in permitting the retrial in his absence.
The second appellant was convicted of conspiracy to rob following a trial at which he failed to attend and was unrepresented. His former solicitors and counsel had withdrawn due to lack of instructions. The trial judge allowed the trial to proceed in the absence of the defendant, citing the trauma to prosecution witnesses and the need for finality.
The third defendant was convicted on multiple counts of deception-related offences following a trial in his absence. Despite being legally represented throughout the trial and maintaining contact with his solicitors, he absconded after being discharged from hospital. He applies for leave to appeal against conviction and sentence.
Legal Issues Presented
- Whether a trial can properly take place in the absence of the defendant and under what circumstances such a trial is lawful and fair.
- The extent and limits of the trial judge's discretion to proceed with a trial in the absence of the defendant and/or his legal representatives.
- The rights of an absent defendant to legal representation during trial and appeal, including the application of European Convention on Human Rights (ECHR) Article 6.
- The procedural safeguards required to ensure fairness in trials conducted in the absence of the defendant.
- Whether the specific trials of the appellants were conducted fairly and in accordance with legal principles and established precedents.
Arguments of the Parties
Appellants' Arguments
- The absence of the defendant and lack of legal representation create a significant risk of unsafe trial due to inability to cross-examine prosecution witnesses or present defence evidence.
- No public interest justifies trials in absence except in cases of absconding, which are rare; defendants on bail are not warned they may be tried in absence.
- Judicial discretion to continue trials without defendants should be exercised only with great reluctance and after full public argument, with minimal risk of unfairness.
- European and English authorities emphasize the fundamental right to be present and to legal representation; trials in absence should be exceptional and carefully controlled.
- In one case, the trial judge failed to consider properly the discretion to try in absence, leading to unfairness and unsafe conviction.
- In another, the absence of legal representation during trial was prejudicial and violated Article 6(3)(d) of the ECHR.
Crown's Arguments
- The trial judge has broad discretion to proceed in the absence of the defendant, particularly where the defendant has deliberately absconded or obstructed proceedings.
- The right to be present and to legal representation can be waived by the defendant through deliberate absence or withdrawal of instructions.
- There is no absolute right not to be tried in absentia; public interest and fairness to victims and witnesses justify proceeding.
- Trials were conducted fairly, with judicial directions to the jury to avoid adverse inference from absence, and with counsel acting to ensure fairness.
- Deliberate absences should not allow defendants to dictate trial timing or avoid justice.
- In cases where defendants abscond, the court must balance interests of justice, victims, and public interest in finality of proceedings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Jones (No 2) 56 Cr. App. R 413 |
A defendant has a right to be present unless he abuses or waives it; trial in absence is a discretion exercised with great reluctance. |
Guided the court's recognition of the discretion and the circumstances under which trial in absence may proceed. |
| Shaw 70 Cr. App. R 313 |
Trial judge should not interfere with professional conduct decisions of counsel where defendant absconds. |
Supported the Bar's Code of Conduct provisions regarding counsel's discretion to continue representing absent defendants. |
| Howson 74 Cr. App. R 172 |
Trial judge's discretion to continue trial in absence extends to involuntary absence but must be used sparingly and not if defence is prejudiced. |
Affirmed the cautious exercise of discretion and protection of defendant's interests. |
| Jones, Planter and Pengelly 1991 Crim LR 856 |
Discretion to try in absence applies both to voluntary and involuntary absences. |
Clarified the scope of discretion and the equivalence of voluntary absence and removal for misconduct. |
| R v Governor of Brixton Prison Ex P Caborn-Waterfield 1960 2 QB 498 |
Applicant cannot complain about being tried in absence after multiple failures to appear. |
Supported the principle that deliberate absence waives right to complain about trial in absence. |
| Nadeem Araf CACD transcript 8th February 1996 |
Trial judge's decision to continue trial after absconding was proper exercise of discretion. |
Applied to uphold trial in absence where defendant caused his own absence. |
| Donnelly [1997] EWCA Crim 1431 |
Defendant cannot dictate trial timing by conditional attendance; voluntary absence waives right to appeal on adjournment grounds. |
Dismissed appeal where defendant absconded after legal argument and before jury sworn. |
| Genese and Kaye 1988 Crim. LR 679 |
Co-accused absconding does not invalidate trial of other defendants. |
Dismissed appeal where co-accused absconded early in trial. |
| Panayis [1998] EWCA Crim 1971 |
Prejudice claimed due to co-accused absconding insufficient to grant leave to appeal. |
Refused leave to appeal on basis of co-accused absence. |
| Colozza v Italy 7 EHRR 516 |
Trial in absence requires waiver or evasion of justice; states have discretion but must ensure fair result. |
Considered the balance between state discretion and defendant rights in absentia trials. |
| Brozicek v Italy 12 EHRR 371 |
Violation of Article 6(1) where defendant did not understand language and no waiver of presence was shown. |
Emphasized necessity of knowing waiver for trial in absence. |
| Ekbatani v Sweden 13 EHRR 504 |
Violation where defendant's lawyers were refused hearing; right to be present affirmed. |
Supported principle of right to participate and be heard. |
| Poitrimol v France 18 EHRR 130 |
Trial in absence not incompatible if accused can obtain fresh determination; waiver must be unequivocal with safeguards. |
Held breach where appeals courts refused to hear lawyer's arguments for absent defendant. |
| Lala v Netherlands 18 EHRR 586 |
Defendant cannot be deprived of right to counsel even if properly summoned but absent without excuse. |
Distinguished English adversarial system from Dutch inquisitorial system; noted importance of legal defence. |
| Pelladoah v Netherlands 19 EHRR 81 |
Violation where counsel was refused opportunity to defend absent defendant on appeal. |
Affirmed right to legal defence regardless of presence. |
| Van Geyseghem v Belgium (2001) 32 EHRR 24 |
Right to be effectively defended by lawyer applies even if accused absent; legislature cannot penalise unjustified absence by denying legal assistance. |
Applied principles from Lala and Pelladoah; duty on courts to allow defence counsel to act. |
| Krombach v Bamberski European Court of Justice 2000 |
Refusal to hear defence of absent accused breaches fundamental right to effective defence. |
Confirmed fundamental nature of right to legal defence in absentia trials. |
Court's Reasoning and Analysis
The court began by reviewing the principles governing trials in the absence of defendants, emphasizing that a defendant generally has the right to be present and legally represented. These rights may be waived, either wholly or partially, by deliberate and voluntary absence or conduct obstructing proceedings. The trial judge possesses a discretion to proceed in absence, but this discretion must be exercised with great care and only in rare, exceptional cases, especially if the defendant is unrepresented.
The court outlined factors the judge must consider, including the nature of the defendant's absence, whether the absence was deliberate, the possibility and length of adjournment, the status of legal representation and communication with the defendant, potential prejudice to the defence, the seriousness of the offence, the interests of victims and witnesses, and the public interest in timely trials.
In the first appellant's case, the court found that the trial judge failed to exercise his discretion properly by not hearing argument or making a ruling on proceeding in absence. Given the previous jury's inability to reach verdicts and the absence of the defendant's explanation, the court held that a fair trial was not demonstrated. The conviction on retrial was quashed.
In the second appellant's case, the judge carefully considered the circumstances, including the deliberate absence of the defendants, the trauma to witnesses, and the need for finality. The judge gave proper directions to the jury to avoid adverse inference from absence and ensured fairness as far as possible. The court held that the trial judge's discretion was properly exercised and the conviction was safe.
In the third defendant's case, the court found that the defendant had deliberately absconded and waived the right to be present. Legal representatives continued to act with instructions from the defendant despite his absence. The trial judge's discretion to proceed was properly exercised, and there was no breach of Article 6(3)(d) of the ECHR. The conviction was upheld as safe.
The court also reviewed relevant European authorities, noting differences in legal systems but affirming that the right to legal representation cannot be denied due to absence, and that trials in absence must be accompanied by safeguards to ensure fairness. The English adversarial system discourages unjustified absences but permits trials in absence under strict conditions and judicial oversight.
Holding and Implications
First appellant's appeal against conviction is allowed and the conviction on retrial is quashed. The trial judge failed to properly exercise discretion before proceeding in the defendant's absence, resulting in an unsafe trial.
Second appellant's appeal against conviction is dismissed. The trial judge properly exercised discretion to proceed in the defendant's absence, taking into account the deliberate absences, interests of witnesses, and ensuring fairness through directions to the jury.
Third defendant's application for leave to appeal against conviction is refused. The defendant deliberately absconded but was represented during trial; the trial judge's discretion was properly exercised and the conviction is safe.
The court established clear principles for trials in absence, emphasizing judicial discretion exercised with great care, the necessity of legal representation where possible, and the balancing of fairness to both defence and prosecution. No new precedent was set beyond clarifying the application of existing principles. The decisions directly affect the parties by allowing one appeal and dismissing the others, with potential for retrial in the first appellant's case.