R v Jones

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL,LORD NOLAN,LORD HOFFMANN,LORD HUTTON,LORD RODGER OF EARLSFERRY
Judgment Date20 February 2002
Neutral Citation[2002] UKHL 5
CourtHouse of Lords
Date20 February 2002
Regina
and
Jones
(Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

[2002] UKHL 5

Lord Bingham of Cornhill

Lord Nolan

Lord Hoffmann

Lord Hutton

Lord Rodger of Earlsferry

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,1

1

The question before the House, rightly certified by the Court of Appeal (Criminal Division) as one of general public importance, is this:

"Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?"

To that question the Court of Appeal gave an affirmative answer, while emphasising that the discretion to proceed with a trial in the absence, from the beginning, of the defendant is one to be exercised with extreme care and only in the rare case where, after full consideration of all relevant matters, including in particular the fairness of a trial, the judge concludes that the trial should proceed: [2001] 3 WLR 125, at pp 135–136, para 22.

2

The agreed facts are brief. On 18 August 1997 a robbery took place at a post office in Liverpool in the course of which some £87,000 were stolen. The appellant (Mr Jones) was arrested nearby shortly afterwards and was charged. On 3 December 1997 he and a co-defendant, Mr Roberts, were committed on bail for trial at the Crown Court in Liverpool. In January 1998 both defendants were arraigned and pleaded not guilty. A trial date of 9 March 1998 was fixed but vacated and replaced with a trial date of 1 June 1998. On 1 June 1998, neither the appellant nor his co-defendant surrendered to the Crown Court for trial and warrants were issued for their arrest. The trial was relisted to commence on 5 October 1998. Neither the appellant nor his co-defendant had been arrested by that date, and neither had surrendered. The case was adjourned to the following day, when it was listed for trial before His Honour Judge Holloway. The appellant and his co-defendant had still not been arrested and they had still not surrendered. The legal representatives acting for the appellant had previously withdrawn from the proceedings in light of his failure to attend on 1 June 1998, and at the hearing on 6 October those representing the co-defendant also withdrew from the proceedings.

3

The transcript of the hearing on 6 October shows that the initial reaction of the judge, based on instinct and long experience, was that a trial could not begin in the absence of a defendant, whatever the reason for his absence. The judge showed obvious reluctance to embark on the trial in those circumstances. It was however urged upon him that further delay would be very unfair to a large body of witnesses, some of whom had undergone a very traumatic experience, and after reference to the decided cases he ruled that the trial should begin, taking the view that the defendants had deliberately frustrated the attempt of the prosecuting authorities to have the case finally concluded. He indicated that anything of advantage to the defendants would be highlighted during the evidence and that any material of assistance to the defendants would be put before the jury. The trial accordingly proceeded and the judge in his summing up warned the jury not to hold the absence of the defendants against them.

4

On 9 October 1998 both the appellant and his co-defendant were convicted on unanimous verdicts of conspiracy to rob, and on the same day the judge sentenced each of them to 13 years' imprisonment. It was not until 14 months later, at the end of December 1999, that the appellant was arrested. He was brought before the court and admitted his failure to surrender to custody. At a hearing before Judge Holloway on 4 January 2000, the appellant was sentenced to serve 12 months' imprisonment for his failure to surrender to custody, concurrently with the sentence already imposed upon him for conspiracy to rob. The appellant sought leave to appeal against conviction and, on refusal by the single judge, renewed his application to the full court. The renewed application was listed to be heard on 16 January 2001, with other appeals raising a similar issue. The appellant was represented by leading and two junior counsel at that hearing when leave to appeal was granted and his appeal heard. It was however dismissed on 31 January 2001. Having ruled on the issue of principle, the Court of Appeal considered the appellant's case and at pp 143–144, para 41, said:

"As the judge made clear to the jury in summing up, the only possible explanations of the forensic evidence were either guilt or that there had been a massive police conspiracy to contaminate the defendant's clothing before it was examined by the forensic science laboratory. Although the defendant, now in custody, has been present at his appeal and able to instruct the solicitors and leading counsel who now represent him, no submission in support of the second explanation has been advanced to this court. Nor is it suggested that, if he had attended his trial, he could or would have produced an innocent explanation for the contamination of his clothing, his presence in the vicinity of the robbery or fleeing from the police, or that he was unconnected with the walkie-talkie found near the scene. In our judgment there is no reason, in all these circumstances, to regard his conviction as unsafe or his trial as unfair and accordingly his appeal against conviction is dismissed."

No application to call fresh evidence was made to the Court of Appeal. At the hearing on 4 January 2000 it was acknowledged by counsel representing the appellant that his failure to appear on the date fixed for trial had been deliberate. It was not suggested either at that hearing or in the Court of Appeal that he had been unaware of his obligation to appear on the date fixed for the trial or that he had been unaware of that date or that he had been unaware of the likely consequences if he did not appear.

5

The certified question raises a question of principle, but it falls to be answered in the factual context of this case. It is particularly important to note that the appellant was arraigned and pleaded not guilty in January 1998, but that his trial did not then commence: R v Tonner (1985) 80 CrAppR 170. He was bailed to appear at his trial on 1 June 1998. He had the benefit of legal aid to instruct, and did instruct, solicitors and counsel to represent him at his trial. He knew the date of the trial and of his obligation to attend and deliberately decided to absent himself for reasons of his own. He had no reason to believe that the trial would not proceed in his absence or that his legal representatives would be able to represent him if he did not appear.

6

For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or respectably) be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant (as in R v Abrahams (1895) 21 VLR 343 and R v Howson (1981) 74 CrAppR 172); or misbehaviour (as in R v Berry (1897) 104 LT Jo 110 and R v Browne (1906) 70 JP 472); or because the defendant has voluntarily absconded (as in R v Jones (Robert) (No 2) [1972] 1 WLR 887 and R v Shaw(Elvis) [1980] 1 WLR 1526). In all these cases the court has been recognised as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a view to a further trial being held at a later date. The existence of such a discretion is well-established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for resisting the continuance of the trial than one who has voluntarily chosen to abscond.

7

In R v Abrahams (1895) 21 VLR 343 at 347 Williams J opined that if an accused person failed to appear at trial and was found, when the trial came on, to have absconded, he had clearly waived his right to be present and the prosecution might elect to go on with the trial in his absence; in such event, the judge would exercise his discretion whether to allow the trial to continue, paying particular attention to whether the defendant was represented. But those were not the facts of that case, and these observations must be treated as obiter. It was not until 1991 that the lawfulness of commencing a trial on indictment in the absence of the defendant came before the court as a matter for decision. It may well be that the more restrictive approach taken in earlier days towards the bailing of defendants charged with serious offences helped to ensure that such defendants did appear at their trials. The mandatory terms of the Bail Act 1976 have led to the grant of bail even to defendants, such as the appellant, who might well be thought suitable subjects for custodial restraint pending trial. Be that as it may, the issue fell to be decided in R v Jones, Planter and Pengelly [1991] CrimLR 856. In that case three defendants stood trial charged with a number of offences, but after some days two of the defendants, who were on bail, absconded and the recorder aborted the trial against all three defendants and discharged the jury. When the case was listed to be tried on a second occasion, one defendant appeared and the other two did not. The trial judge ordered that the trial should begin against the absent...

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