R v Hayward, R v Jones (Anthony), R v Purvis
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 31 January 2001 |
| Neutral Citation | [2001] EWCA Crim 168 |
| Docket Number | Cases No: 200000830 X3, 2000002586 Y2 and 199906468 X4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 January 2001 |
[2001] EWCA Crim 168
The Vice President
(Lord Justice Rose)
Mr Justice Hooper and
Mr Justice Goldring
Cases No: 200000830 X3, 2000002586 Y2 and 199906468 X4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anton Lodge QC, Mr Christopher Cornwall and Mr I Taylor appeared for the Crown
Mr Stephen Solley QC appeared for Hayward and Jones, Mr John Davis appeared for Purvis
There are three cases before the court in each of which the defendant was tried by judge and jury in his absence. Hayward, with the leave of the single judge, and Jones, with the leave of this court, appeal against their conviction and Purvis renews his application for leave to appeal, following refusal by the single judge. All three renew their applications for leave to appeal against sentence following refusal by the single judge.
Before looking at the circumstances of each case, it is convenient to consider what principles should determine whether, and if so in what circumstances, such a trial can properly take place.
Mr. Solley Q.C., for Hayward and Jones, submitted that, if the defendant is absent and unrepresented, there is a significant risk that the trial will be unsafe because of the lack of cross-examination of prosecution witnesses and evidence for the defence. No public interest can justify such a trial. Such a trial can only be contemplated if a defendant absconds; and, as that is so rare an occurrence, there is no public interest in permitting such a trial. The judge should require assistance from counsel for the defence even if a defendant has absconded and the Bar Council Guidance, paragraph 16.3.1 issued with the Bar's Code of Conduct may, in consequence, require amendment. This presently provides:
"if during the course of a criminal trial and prior to final sentence the defendant voluntarily absconds and the barrister's professional client in accordance with the ruling of the Law Society withdraws from the case then the barrister too should withdraw. If the trial judge requests the barrister to remain to assist the court the barrister has an absolute discretion whether to do so or not. If he does remain he should act on the basis that his instructions are withdrawn and he will not be entitled to use any material contained in his brief save for such part that has already been established in evidence before the court. He should request the trial judge to instruct the jury that this is the basis on which he his prepared to assist the court."
Paragraph 16.3.2 provides:
"If for any reason the barrister's professional client does not withdraw from the case, the barrister retains an absolute discretion whether to continue to act. If he does continue, he should conduct the case as if his client was still present in court but had decided not to give evidence and on the basis of any instruction he has received. He will be free to use any material contained in his brief and may cross-examine witnesses called by the prosecution and call witnesses for the defence."
He further submitted that there is no point in having such a trial, as any sentence imposed cannot be effective until the defendant surrenders. The impact of delay on victims should be dealt with in other ways, such as by preserving evidence in some form or counselling. Defendants who are on bail are not warned at the time of being bailed that they may be tried in their absence. There is no distinction between a defendant who absconds before or during trial. In the Magistrates Court, trial in a defendant's absence is specifically contemplated by section 11(1) of the Magistrates Courts Act 1980 but in such a case sentence is limited by section 11(3) to 3 months imprisonment and, in any event, there is a right of appeal to the Crown Court on fact and law. Trial in a defendant's absence is justifiable in those European Countries where there is an inquisitorial system, but not in England. No judicial discretion to continue a trial without the defendant should exist if the consequence of its exercise is inevitably to ensure serious unfairness. The right to be present is a fundamental right and the courts, rather than seeking to preserve a residual discretion, should pass the problem of absent defendants to the legislature.
In the alternative, Mr. Solley Q.C. submitted that, if there is a judicial discretion, it should be exercised in favour of continuing a trial only in specific circumstances. The risk of unfairness must be kept to a minimum by establishing to the criminal standard that the defendant has waived his right to be present; there must be a lawyer to represent the defendant even if he has said that he does not wish to be represented; the discretion must be exercised only after full public argument including argument on behalf of the defence; a warning must be given when a defendant is bailed that, if he fails to surrender, he may be tried in his absence; and a judge's discretion should be exercised in favour of continuing in the absence of the defendant only if there would otherwise be overwhelming prejudice to the prosecution.
Mr. Solley Q.C. took us to a number of authorities. In Jones (No 2) 56 Cr. App. R 413 the Court of Appeal held that a defendant has a right to be present at his trial unless he abuses that right for the purposes of obstructing the proceedings by unseemly, indecent or outrageous behaviour in which case he may be removed and the trial may proceed in his absence, or he waives that right by voluntarily absenting himself, as by absconding during the trial. In such a case the judge:
"has in law a discretion, but that discretion should be exercised with great reluctance and with a view rather to the due administration of justice than to the convenience or comfort of anyone."
(Hood J in Abrahams (1895) 21 VLR 343 at 353 cited with approval by Roskill LJ giving the judgment of the court in Jones (No 2) at page 421. The court in Jones (No 2) emphasised that it would not countenance putting a premium on jumping bail.
In Shaw 70 Cr. App. R 313 the Court of Appeal held that it is not for a trial judge to involve himself in questions of professional conduct and etiquette, where a defendant absconds during the trial: counsel and solicitor had wanted to continue but the judge decided that they could take no further part. It was this decision that lead to the provisions in the Bar's Code of Conduct and guidance which we have earlier rehearsed. In Howson 74 Cr. App. R 172 the Court of Appeal held that the judge's discretion to continue a trial is not limited to cases in which the accused has abused his right to be present or has voluntarily agreed to the trial going on in his absence and, in an appropriate case, (which Howson was not), the judge has a discretion to continue in the absence of an accused through illness. But the discretion is to be used sparingly and never if the accused's defence could be prejudiced by his absence. In Jones, Planter and Pengelly 1991 Crim LR 856, CACD transcript 14th June 1991, the Court of Appeal, presided over by Lord Lane, Chief Justice, held that it is plain in principle and has been since the end of the 19th century (see ( Berry 1897) 104 L.T. 110 and Browne (1906) 70 J.P. 472) that a judge has a discretion to order a trial to start or continue not only where a defendant voluntarily absents himself but also where as in the case of Howson, he is involuntarily absent. At page 10G of the transcript Lord Lane said:
"There is no distinction in principle between a defendant who misbehaves in such a way as to make his/her removal from court necessary and on the other hand the person who deliberately refuses to attend the trial when he is at liberty to do so".
Lord Lane also referred at page 11G of the transcript to R v Governor of Brixton Prison Ex P Caborn-Waterfield 1960 2 QB 498. In that case Salmon J, giving the judgment of the court, referred to the applicant having, on three separate occasions, without excuse failed to appear before a French court: "it certainly does not lie in his mouth to complain that he was dealt with in his absence". The discretion is to be exercised with considerable care. In his comment on Jones, Planter and Pengelly Professor Sir John Smith pointed out the difference between a case of a defendant deliberately absent and involuntarily absent: in the former case he effectively waives his right to be present, whereas in the latter case the right to be present is qualified by the discretion of the judge to allow the case to proceed.
In Nadeem Araf CACD transcript 8th February 1996 the Court of Appeal dismissed an application for leave to appeal when the trial judge continued after a defendant had absconded following the complainant's evidence and his counsel and solicitors withdrew. The court, following Jones (No 2), said that this was a proper exercise of discretion, the defendant having brought the matter entirely upon his own head. In Donnelly CACD transcript 12th June 1997 the Court of Appeal dismissed an appeal by a defendant who had absconded following legal argument and before the jury was sworn because he had not been provided with legal aid to obtain the accountant's report which he believed he needed. The judge refused to adjourn. Counsel continued to represent the defendant during the trial which lasted for some weeks. McCowan LJ giving the judgment of the court said:
"What this appellant was saying to the judge in the letter he wrote was "if you will do what I want I will come to court. If you will not do what I want I will not." This is an...
To continue reading
Request your trial
-
R v Marc Daniel Jackson
...correct manner, following the procedure set out in R v Jones [2003] 1 AC 1, which itself approved the detailed checklist set out in R v Hayward [2001] QB 862. He considered all the relevant material with care and concluded that he should exercise his discretion to proceed in the applicant's......
-
R v Martin Hamberger
...which was necessary. The judge then considered the criteria for trial in absence stated by this court in R v Haywood, Jones and Purvis [2001] QB 862 and endorsed by the House of Lords in R v Jones [2003] l AC 1, and ruled that this was a rare and exceptional case in which the trial could pr......
-
Marie-Therese Elisabeth Helene Hohenberg Bailey v Anthony John Bailey
...to the fairness of the proceedings (see R v Jones (Anthony) [2003] 1 AC 1, approving the checklist provided in R v Jones; R v Purvis [2001] QB 862); ii) Findings of fact are required before any penalty can be considered in committal proceedings; the presumption of innocence applies (Articl......
-
Bernadette Patricia McDaid v Nursing & Midwifery Council
...when exercising the discretion to proceed in a criminal case in the absence of the defendant are set out in the case of R v Hayward [2001] EWCA Crim 168, approved on appeal by the House of Lords, sub nom R v Jones (Anthony) [2002] UKHL 5 and applied to professional regulatory proceedings by......
-
Trials in absentia and the cuts to criminal legal aid
...vUnited Kingdom (1992) 15 EHRR 417 at [33] reads: ‘Article 6(3)(c) guarantees minimum rights butthey are not exhaustive’.54. RvHayward [2001] 3 WLR 125, CA.55. Ibid. at [22] (Rose LJ) (emphasis added).56. Ibid. (emphasis added).57. A. Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) LQR......
-
Proceeding in Absence: The ‘Default Position’ in Magistrates’ Courts? R v Rathor [2018] EWHC 3278
...The court’sresponse to the application for judicial review stated that the Judge had regard to the principles set out inR v Jones [2001] EWCA Crim 168 when refusing to adjourn, although it did not state ‘how he had regardto [them], or indeed what if any, reliance he placed on the various fa......