R v Shaw (Elvis)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE KILNER BROWN |
| Judgment Date | 11 March 1980 |
| Judgment citation (vLex) | [1980] EWCA Crim J0311-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2084/C/79 |
| Date | 11 March 1980 |
[1980] EWCA Crim J0311-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Donaldson
Mr. Justice Kilner Brown
and
Mr. Justice Wood
No. 2084/C/79
MR. J. FARMER appeared as Counsel on behalf of the Appellant.
MR. M. McMULLAN appeared as Counsel on behalf of the Crown.
On 4th May, 1979, at Cambridge Crown Court, before His Honour Judge Wild, the appellant, who was present in the early stages of his trial, was convicted in his absence of an offence of robbery and after arrest on a bench warrant was sentenced, on 8th May, to a term of 3 years' imprisonment. He now appeals, by leave of the single judge, against that conviction, but there is no appeal against sentence, and the facts of the case are of no relevance to the issue before this court. The problem concerns the position and powers of a trial judge where a defendant who is on bail absconds during the process of the trial. Whereas in the past this was a question which rarely had to be considered, the court is aware that the application of the Bail Act is leading to a regrettable increase in this state of affairs and the problem requires urgent further consideration by the Council of the Bar and the Law Society.
In the case before us counsel was properly instructed and his instructions were that the defendant would give evidence and that witnesses were available to give evidence in accordance with proofs of evidence which indicated support for the defendant in his defence. When the defendant went absent the judge investigated the absence and concluded that it was voluntary. He exercised his discretion properly and rejected an application to discharge the jury and to order a new trial. Unfortunately as a second stage of his ruling and before deciding whether to continue in the absence of the defendant he said this, "The next question is what is the position of counsel and solicitor here on his behalf. Again, I have no hesitation in saying that the absence being, in my judgment, intentional then his instructions are deemed to be withdrawn and they can take no further part in the trial on his behalf whether by way of cross-examination or calling other witnesses". Although they wished to continue their representation, counsel and solicitor were thus prevented from so doing by judicial order. It is on this question that the appeal is argued.
At present the only judicial guidance on the matter is to be found in Archbold Criminal Pleading Evidence and Practice 40th Edition, at paragraphs 330 and 330a. Those paragraphs largely deal with the trial judge's powers to reject a submission to discharge the jury and to order the continuance of the trial in the absence of the defendant. They also deal with the position of counsel and solicitor and the Court of Appeal where an appeal is purported to be lodged on behalf of an absconding convicted person. In R. v. Jones (No. 2) (1972) 56 Cr.App.R. 413, it was recognised that it was for counsel to decide whether to continue representation or not. On professional guidance a relevant paragraph from the Annual Statement of the Council of the Bar 1978/79 is set out in the second...
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