Trials in absentia and the cuts to criminal legal aid

AuthorPaul Willey
Published date01 December 2014
Date01 December 2014
Subject MatterArticles
Trials in absentia and the cuts
to criminal legal aid: a deadly
Paul Willey
LLB. Current BPTC student at Nottingham Law School, UK
The swingeing cuts to criminal legal aid may do irreparable damage to the defence side of the
equality of arms. Coupled with this, the case of RvJones gives the judge discretion to try in the
defendant’s absence without representation or being present as a litigant-in-person. It is argu-
able that the defendant’s right to be heard will be chipped away at until the defence side is left
legally crippled. The enactment of the Legal Aid, Sentencing and Punishment of Offenders Act
2012 is insular and neglects the defendant’s rights systemically. Without an adequate defence,
squalid injustice will permeate and reverberate throughout the criminal justice system. Defen-
dants cannot be corralled into court without the assistance of an advocate. The impact of the
cuts falls on the litigant-in-person, thereby delimiting access to justice. Thus it disallows the
opportunity to raise a proper defence. The sequela of the attack against the defence is a retreat
back to the pre-1690s when defendants had very limited chances of being represented.
Expense should not quell the right to be heard. Will the 2012 Act administer the coup de grace
to the right to be heard orwill Magna Carta be a heaven-sent ancientbulwark against this threat?
Fairness, trial in absentia, legal aid, representation, Article 6, justice
Magna Carta 1215,
Chapter 29: ‘To no man shall we sell, or deny, or delay, right or justice’.
Corresponding author:
Paul Willey, 16 Torridon Close, Sinfin, Derby, DE24 9LJ, United Kingdom.
1. The Rt Hon Lord Dyson MR, Speech at Magna Carta, Religion and The Rule of Law, Temple, London, 7 June 2014, para. 1,
available at (accessed 3
October 2014). The Master of the Rolls states Magna Carta ‘as the source of the constitutional liberties of all English-speaking
peoples, and a common bond of peace between them’.
2. British Library, Treasures in Full: Magna Carta, 8 October 2014, available at
lation/mc_trans.html (accessed 6 October 2014); originally as Chapter 40 but ‘re-enacted as Chapter 29 of the Statute 25 Edw. 1
(1297)’: RvSecretary of State for the Home Department, ex p. Wynne [1992] QB 406 at 427 (Lord Donaldson MR).
The Journal of Criminal Law
2014, Vol. 78(6) 486–510
ªThe Author(s) 2014
Reprints and permissions:
DOI: 10.1177/0022018314557412
This article seeks to uncover how the common law discretion supplied to trial judges in RvJones (Anthony
(hereinafter ‘Jones’) to try an accused in his absence and his counsel’s absence is an impediment to
natural justice; how Jones decays the rights to be heard, to confront one’s accusers, and how the decision
breaches Article 6 of the European Convention on Human Rights (hereafter ‘ECHR’). The article will first
outline the historical origins of the defendant’s role in the criminal trial and the defendant’s representation
throughout criminal proceedings in an historical context. It will then examine the English law in its present
state using a black-letter law and common law approach, with the incorporation of the European Court of
Human Rights (‘ECtHR’/‘Strasbourg’) jurisprudence and dominion case law. Subsequently, the article will
compare the present state of English law with that of other legal systems in the world. By doing this, it will
show whether the English law at present is lacking or inconsistent with the principles applied internationally.
Finally, the article will focus upon how the cuts to criminal legal aid will radically reduce the right to
be heard and over time increase trials in absentia.
Lady Hale postulates Chapter 29 of Magna Carta as a precursor and progenitor of Article 6 of the
Recognising this constitutional principle,
the President of the Supreme Court, Lord Neuberger,
elucidated that: ‘Most famously of all, we have long guaranteed the right to fair trial, or as the Magna
Carta put it nearly 800 years ago ‘‘due process of the law’’.
Under English law, there is no absolute right to representation, meaning that an indigent defendant
can appear in court faced with a charge by the Crown Prosecution Service (hereafter ‘CPS’) and, pre-
suming he has no legal knowledge whatsoever, can be tried in court and cross-examined by an advocate
who has ten-fold experience of the legal system.
The end result is that he is found guilty (although innocent) or, even worse, pleads guilty at the earliest
in order to save money and the lawyer’s time.
No common law rule or Acts of Parliament,
which are the main sources of primary law in England, state that the defendant is automatically entitled
to representation.
In the aim of the interests of justice and upholding justice, the author also argues that
the poor defendant should have representation even if he refuses it.
If the defendant is not present to give his testimony, he may not make any atonement to his victim or
to the community that he has wronged—if, of course, he has wronged it—or face up to his injurious
actions in front of the victim and institution he has wronged. This can affect sentence and many other
variables during proceedings. Does the court not commit a misdeed itself by allowing the defendant not
to be heard, yet to be sentenced by his peers?
He does not know his punishment handed down to him,
and is therefore oblivious to his future, as imposed by the court. How can the tongue of the false accuser
be silenced if the accused is not there to say anything countervailing of the accusation? The whole court-
room, especially the jury, cannot take cognisance of the defendant’s character, be it good or bad. If this
continues, the prosecution will always have the upper hand in the courtroom battle.
3. [2003] 1 AC 1.
4. Lady Hale, What’s the Point of Human Rights?, Warwick Law Lecture, 2013, para. 1, available at
docs/speech-131128.pdf (accessed 5 October 2014).
5. Libman vAttorney-General of Quebec (1997) 3 BHRC 369 at 289.
6. Lord Neuberger, President of the Supreme Court, Cambridge Freshfields Annual Law Lecture 2014—The British and Europe,
February 2014, para. 53, available at (accessed 4 October 2014)
(emphasis in original).
7. O. Bowcott, ‘Lawyers to Earn Higher Legal Aid Fees for Early Guilty Pleas’, Guardian, 1 November 2013, available at http:// (accessed 4 October 2014).
8. D. Newman, ‘Legal Aid Cuts to Challenge Democratic Notion of Justice’, The Lawyer, 2 December 2013, available at http://
cle (accessed 4 October 2014).
9. However, s. 2 of the Criminal Procedure Act 1865 states that a defendant who is unrepresented must ‘adduce evidence’ in the
absence of counsel.
10. Ch. 29 of Magna Carta reads: ‘No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will
we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land’ (emphasis added).
Willey 487

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