THE CRIMINAL TRIAL AND THE DISRUPTIVE DEFENDANT
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01594.x |
| Author | Graham Zellick |
| Published date | 01 May 1980 |
| Date | 01 May 1980 |
THE
CRIMINAL TRIAL
AND
THE
DISRUPTIVE
DEFENDANT
PART
TWO"
EXCLUSION
ENGLISH
law attaches the greatest importance to the presence of the
defendant at his trial. The civil law tradition of trials
in
absentia
is
thought here to be anathema? The old rule regarded the defendant's
presence at his trial for felony
as
absolutely essential
O;
it
went
so
far
as
to
insist
on
his presence
in
the dock and nowhere else.B
"
Even
in
charges
of
misdemeanour," said Lord Reading
C.J..
"
there must
be
very exceptional circumstances to justify proceeding with the trial
in
the absence
of
the accused. fie reason why the accused should
be
present at the vial is that he may hear the case made against
him
and
have the opportunity, having heard it, of answering it." Another
reason was the opportunity
it
afforded the jury to observe the
defendant's manner? But
"
exceptional circumstances
"
do arise and
the accused's presence
in
misdemeanour
cases
was not always held
to
be
indi~pensable.~ With the abolition
of
the distinction between
felonies and misdemeanours in
1967,
it is the procedure relating
to
the latter which now governs all trials,1° with the exception
of
sum-
mary trials where there
is
even greater flexibility
to
proceed
in
the
defendant's absence.ll It remains true, however, that the discretion
Part I appeared in the March number
of
The Modern
Law
Review
at pp. 121-
135.
4
See European Convention on Human Rights, Art. 6; International Covenant
on Civil and Political Rights, Art. 14; and Council
of
Europe Committee
of
Ministers
Resolution 75 (11).
"
On the Criteria Governing Proceedings Held in the Absence
of
the Accused
"
(1975). Such trials have occasionally
grounded
applications
for
extradi-
tion
:
see
R.
v.
Governor
of
Brfxron
Prison, ex
p.
Ceborn-Wuferfield
[1960] 2
Q.B.
498
(D.C.);
Athunussfds
V.
Government
of
Greece
(197711
A.C. 282; and
R.
v.
Governor
of
Brfxron
Prison ex
p.
Kotronfs
119711
4.12.
250 (D.C. and
H.L.),
on which
see
Zellick.
"
Extradition and Natural Justice (1970)
120
New L.J. 857. In Spain,
it
appears
to
be possible in some cases at least to impose criminal penalties without
the need
for
a trial at all: see
The Times,
November
15,
1975.
5
See
e.g. Archbold
(36th ed., 1966), paras. 546 and 631;
Hulsbury's
Lows
of
England
(3rd ed., 1959, ,pl. 10,
para.
722; Roscoe's
Crimilud Evidence
(16th ed.,
1952), p. 242; Goldin, Presence
of
the Defendant a Rendition
of
the Verdict
in Felony Cases
"
(1916) 16 Co1.L.R. 18; and Criminal
Law
Revision Committee,
Seventh
Report
:
Felonies
and
Misdemeunours
(Cmnd. 2659 (1965)
),
para. 16.
a
R.
v.
Sf.
George
(1840) 9 C.
&
P.
483, 485 (Parke
B.);
R.
v.
Dauglus
(1841)
Car.
&
M.
193 (C.C.C.);
R.
v.
Zuluetu
(1843)
1
Car.
&
K.
215. Compare
R.
v.
Home Tooke
(1794) 25 St.Tr. 1, 6-12 (exception on ground
of
ill-health).
7
R.
v.
Lee
Kun
[1916]
1
K.B.
337, 341 (C.C.A.).
See
"
Power
of
Court
to
Pass
Sentence in Absence
of
Prisoner
"
(1933)
97
J.P.N. 621.
8
R.
V.
Bertrund
(1867) L.R. 1 P.C.
520,
535.
9
See Archbold,
paras.
328-33Oa; and Griew,
"
The Order
of
Defence Evidence
**
119691 Crim.L.R. 347, 355-357.
10
Criminal Law Act 1967,
s.
1 (2).
11
Magistrates' Courts Act 1952,
ss.
15, 17, 47 and
99;
Magistrates' Courts Act
1957,
ss.
1
and
4.
But
no
one may be sentenced
to
imprisonment
in
his absence:
284
To continue reading
Request your trial