R v John Kepple

JurisdictionEngland & Wales
JudgeLord Justice Thomas
Judgment Date13 June 2007
Neutral Citation[2007] EWCA Crim 1339
Docket NumberCase No: 2006/04284 C4
CourtCourt of Appeal (Criminal Division)
Date13 June 2007

[2007] EWCA Crim 1339





T2006 0238

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Thomas

Mr Justice Keith and

Mr Justice Lloyd Jones

Case No: 2006/04284 C4

John Kepple

Mr N de la Poer for the Appellant

Mr N Worsley for the Respondent

Hearing dates: 11 May 2007

Lord Justice Thomas

On 27 September 2005 there was a fight in the men's toilets of the Dog and Gun public house at York Road, Leeds between Mr Bones and the appellant. Mr Bones sustained injuries including bruising to the head and wounds to the eye which required stitching. The appellant was arrested and charged with unlawful wounding contrary to s.20 of the Offences Against the Person Act 1861.


The appellant was committed on bail to the Crown Court at Leeds. A defence case statement was served in which it was said that the appellant acted in lawful self defence after being attacked by Mr Bones. On 25 May 2006 the appellant appeared at a Plea and Case Management hearing in the Crown Court at Leeds and pleaded not guilty; he was bailed to attend trial.


On 3 July 2006 the case was listed for trial before Mr Recorder Rose and a jury in the Crown Court at Leeds on an indictment which charged the appellant with the offence under s.20. On that morning, counsel for the prosecution informed counsel for the appellant that he was intending to make an application to add a count charging the appellant with wounding with intent contrary to s.18 of the Offences Against the Person Act 1861.


Counsel for the appellant had a conference that morning with the appellant and was introduced to two of the witnesses to be called on his behalf; the appellant was told that the prosecution were going to apply to amend the indictment.


When the case was called on later that same day neither the appellant nor the witnesses could be found.


The prosecution applied to the judge to try the appellant in his absence. The judge acceded to this application in a clear ruling:

i) There was no doubt that the appellant had been told on 25 May 2006 that the trial would proceed in his absence if he failed to attend.

ii) The appellant knew the prosecution intended to add a count in respect of the offence under s.18.

iii) There was no explanation of his failure to attend that was innocent as he had been in court on the morning. The appellant knew of the serious position he was in.

iv) The factors set out in Jones [2002] UKHL 5 were considered; any prejudice to the appellant was caused by the appellant's own actions.

v) The appellant had given instructions to counsel, including instructions on the bad character application.

vi) It was just in all the circumstances to proceed with the trial.


After that decision and during the trial counsel for the appellant and his solicitors continued to represent the appellant; the appellant did not appear at all at his trial. Despite the issue of a bench warrant the police failed to apprehend him until October 2006.


The prosecution then applied to add the count under s.18. No opposition was put forward to that application. The judge acceded to it. The jury was sworn in.


The trial then proceeded. The prosecution called the following witnesses.

i) Mr Bones stated he had drunk some beer at home and then had gone to the Dog and Gun. There he had consumed more alcohol; he was in a jovial mood and had been celebrating the birth of his first granddaughter. He went to the toilet. As he did so, he looked round and saw two people sitting down. He glanced at them but had no interaction with them. He entered the toilet. When he was about to use the urinal, he felt a blow to the side of his face which he thought was a head butt. He saw a shadow coming towards him and then more blows came. He was stunned and tried to throw defensive punches, but there were too many incoming blows. He then slumped to the floor where more blows were delivered and he passed out. He denied in cross examination that he had been acting in an aggressive or threatening manner during the attack. He denied knowing the appellant. He denied starting the fight. During the course of that cross examination, the judge made a ruling in respect of the scope of cross examination by counsel for the appellant. e..

ii) Caroline Greenwood, a barmaid at the public house, said Mr Bones had been drinking at the pub. He was in a good mood and telling her of the birth of his first granddaughter. She recalled Mr Bones going to the toilet and recalled him stopping and saying something to another man by the one-armed bandit. She told Mr Bones to go to the toilet and ignore the other person. Mr Bones pointed at the appellant and the appellant told Mr Bones not to point at him or else he would kill him. Mr Bones apologised and went on to the toilet. A few minutes later she said she was told that the appellant was not at the table where he had previously been sitting. She went to the men's toilet to check everything was all right. She was unable to open the doors. Mr Bones's back was against the frosted glass panel. She heard the appellant shouting that he was going to kill Mr Bones and Mr Bones was shouting “Come on then.” She left and called the police. The man who had been sitting with the appellant asked Miss Greenwood if she had called the police; when she said that she had the man went to the toilet and returned with the appellant. The two left the pub. Another customer then went to the toilet and came out. He told Miss Greenwood to call an ambulance and she did so. She was cross examined briefly; she accepted Mr Bones was drunk.

iii) Mr Simpson, a customer at the Dog and Gun that evening, saw Mr Bones make his way to the toilet and the appellant get up and talk to him. He then saw the appellant sit down and the appellant get up and follow Mr Bones into the toilet.

iv) Mrs Simpson, Mr Simpson's wife, gave evidence that she had met Mr Bones once before as a customer and he had seemed to know the appellant by name. She recalled him going to the toilet and the next thing she saw was him being carried out on a stretcher. She had seen the appellant coming from the toilet.

v) Forensic evidence was given by a finger print expert that two glasses taken from the bar had the appellant's fingerprints on them.

vi) A policeman gave evidence in relation to the arrest and the appellant gave a no comment interview.

vii) An application was made, in accordance with the notice which had been properly given, to admit evidence of the defendant's bad character. This included a conviction in 2001 for violence.


On the morning of the second day, after some of the prosecution evidence had been called, counsel for the appellant applied to discharge the jury on the basis that the appellant had not been arraigned on the new count. The judge refused the application for the reasons we set out later at paragraph 13 below. At the close of the prosecution case, counsel for the appellant made a further application to discharge the jury. That was again refused by the judge. The judge then summed up the case; he expressly pointed out to the jury that the defendant's absence was to be taken as no evidence of anything and it should not be held against him or in any way go to his guilt of the offence with which he was charged. No criticism is made of the summing up.


The jury retired and considered their verdicts for just under 2 1/2 hours. They unanimously convicted the appellant of unlawful wounding with intent contrary to s.18. After the appellant's arrest in October 2006, he was brought before the Crown Court and subsequently sentenced at Leeds Crown Court on 3 January 2007 by Mr Recorder Rose to 54 months imprisonment for the offence under s.18 and a 3 month consecutive sentence for breach of his bail.


The appellant appeals to this court by leave of the single judge against his conviction on two grounds.

i) The judge erred in law in permitting the appellant to be tried in his absence because the appellant had not been arraigned on the count in respect of the offence under s.18; he had then erred in not discharging the jury for the same reason.

ii) The judge had erred in restricting the cross examination in the ruling he made during the cross examination of Mr Bones.

At the conclusion of the hearing, we allowed the appeal and ordered a re-trial. Our reasons for allowing the appeal were the following.

(1) The decision of the judge to proceed with the trial without an arraignment


As we have mentioned at paragraph 8, counsel for the appellant made an application to discharge the jury on the basis that the appellant had not been arraigned on the count in respect of s.18. The judge refused the application in another clear ruling:

i) The appellant was well aware of the application to amend and aware that the trial would proceed in his absence if he failed to attend.

ii) It was implicit in the power to try a person in his absence that certain aspects of the trial would have to proceed on the basis that the defence lawyer could not obtain instructions.

iii) After reference to two decisions of this court (to which we will refer) he concluded that the only difference between a count under s.20 and a count under s.18 was the intention of the appellant; that only made a difference by imposing a higher burden on the prosecution. The appellant's position was unaffected.


At the close of the prosecution case a further application to which we have referred was made on the basis that counsel for the appellant was unable to call any...

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    • Court of Appeal (Criminal Division)
    • 19 February 2019
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