House of Lords
|Session 2001- 02
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|Judgments - Regina v Jones (On Appeal From The Court of Appeal (Criminal Division))
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Nolan Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 20 FEBRUARY 2002
 UKHL 5
LORD BINGHAM OF CORNHILL
1. The question before the House, rightly certified by the Court of Appeal (Criminal Division) as one of general public importance, is this:
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:  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 The legal representatives acting for the appellant had previously withdrawn from the proceedings in light of his failure to attend on 1 June 1998, and at the hearing on 6 October those representing the co-defendant also withdrew from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:
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)  1 WLR 887 and R v Shaw (Elvis)  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  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 defendants as well as the defendant who was present, and on appeal it was argued that he should not have begun the trial against the absent defendants. That contention was rejected. As appears from the transcript of the judgment of Lord Lane CJ, giving the judgment of the court, it was held to be quite plain in principle that there was a discretion in the judge to order a trial to continue, or indeed to start, not only where a person had voluntarily absented himself but also, as Griffiths LJ had held in R v Howson (1981) 74 CrAppR 172, where he had been involuntarily absent. A similar ground of appeal was advanced, unsuccessfully, in R v Donnelly and Donnelly (Court of Appeal (Criminal Division), unreported, 12 June 1997). The House must now decide whether it should overrule this authority as being inconsistent with Strasbourg jurisprudence, or contrary to principle, or apt in practice to work injustice. Counsel for the appellant submits that the authority should be overruled on all those grounds.
8. The European Court of Human Rights and the Commission have repeatedly made clear that it regards the appearance of a criminal defendant at his trial as a matter of capital importance: see, for example, Poitrimol v France (1993) 18 EHRR 130, at p 146, para 35; Pelladoah v Netherlands (1994) 19 EHRR 81, at p 94, para 40; Lala v Netherlands (1994) 18 EHRR 586, at p 597, para 33. That court has also laid down
(1) that a fair hearing requires a defendant to be notified of the proceedings against him: Colozza v Italy (1985) 7 EHRR 516, at pp 523-524, para 28; Brozicek v Italy (1989) 12 EHRR 371;
(2) that a person should as a general principle be entitled to be present at his trial: Ekbatani v Sweden (1988) 13 EHRR 504, at p 509, para 25;
(3) that a defendant in a criminal trial should have the opportunity to present his arguments adequately and participate effectively: Ensslin, Baader and Raspe v Germany (1978) 14 DR 64, at p 115; Stanford v United Kingdom (1994) Series A/282-A;
(4) that a defendant should be entitled to be represented by counsel at trial and on appeal, whether or not he is present or has previously absconded: Delcourt v Belgium (1970) 1 EHRR 355, pp 366-367, para 25; Poitrimol v France, above, at pp 146, 147, paras 34, 38; Pelladoah v Netherlands, above, at p 94, para 40; Lala v Netherlands, above, at pp 597-598, paras 33-34; Van Geyseghem v Belgium (Application No 26103/95, 21 January 1999), at p 11, para 34; Omar v France (1998) 29 EHRR 210 at p 233, paras 41-42.
The right to be defended has also been described by the European Court of Justice as a fundamental right deriving from the constitutional traditions common to the member states of the European Union: Krombach v Bamberski, Case C-7/98, The Times, 30 March 2000.
9. All these principles may be very readily accepted. They are given full effect by the law of the United Kingdom. But the European Court of Human Rights has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has voluntarily chosen not to attend and the trial has continued. In the Ensslin case, in which proceedings were continued during the absence of the defendants caused in large measure by self-induced illness, the proceedings were held to have been properly continued. In Poitrimol v France (above, at p 145, para 31) the court questioned whether a full hearing on appeal could be required by a defendant who had waived his right to appear and defend himself at trial. In Van Geyseghem v Belgium (above, at p 9, para 28) the court was not concerned that the applicant had not wished to avail herself of her right to attend an appeal hearing. In a concurring opinion in that case Judge Bonello (at p 16) held that the presence of a defendant during his trial was basically his right, not his obligation. There is nothing in the Strasbourg jurisprudence to suggest that a trial of a criminal defendant held in his absence is inconsistent with the Convention.
10. In turning to general principle, I find it hard to discern any principled distinction between continuing a trial in the absence, for whatever reason, of a defendant and beginning a trial which has not in law commenced. If, as is accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It is of course true that if a trial has begun and run for some time, the inconvenience to witnesses of attending to testify again on a later occasion, and the waste of time and money, are likely to be greater if the trial is stopped than in the case of a trial that has never begun. But these are matters which, however relevant to the exercise of discretion, provide no ground for holding that a discretion exists in the one case and not in the other. The common law of Scotland, as I understand, provided, and section 92(1) of the Criminal Procedure (Scotland) Act 1995 now stipulates, that no part of a trial on indictment may take place outwith the presence of the accused. The law of England and Wales, while conferring a right and imposing an obligation on the defendant to be present at a trial on indictment, has never been held to include any comparable rule. If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.
11. Counsel for the appellant laid great stress on what he submitted was the inevitable unfairness to the defendant if a trial were to begin in his absence after he had absconded. His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, as happened in this case. Thus there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. The trial would be no more than a paper exercise (as Judge Holloway at one point described it) almost inevitably leading to conviction. The answer to this contention is, in my opinion, that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.
12. Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.
13. I would accordingly answer Yes to the certified question and dismiss this appeal. In doing so I would stress, as the Court of Appeal did in paragraph 22 of its judgment, at pp 135-136, that the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very rarely, if ever, be right to exercise the discretion in favour of commencing the trial, at any rate unless the defendant is represented and asks that the trial should begin. The Court of Appeal's check-list of matters relevant to exercise of the discretion (see paragraph 22(5)) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide. I would add two observations only.
14. First, I do not think that "the seriousness of the offence, which affects defendant, victim and public", listed in paragraph 22(5)(viii) as a matter relevant to the exercise of discretion, is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor.
15. Secondly, it is generally desirable that a defendant be represented even if he has voluntarily absconded. The task of representing at trial a defendant who is not present, and who may well be out of touch, is of course rendered much more difficult and unsatisfactory, and there is no possible ground for criticising the legal representatives who withdrew from representing the appellant at trial in this case. But the presence throughout the trial of legal representatives, in receipt of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a valuable safeguard against the possibility of error and oversight. For this reason trial judges routinely ask counsel to continue to represent a defendant who has absconded during the trial, and counsel in practice accede to such an invitation and defend their absent client as best they properly can in the circumstances. The current legal aid regulations provide for that contingency: see the Criminal Defence Service (General) (No 2) Regulations 2001 (SI 1437/2001). It is in my opinion a practice to be encouraged when the defendant absconds before the trial begins. But the failure to follow it here gives no ground for complaint by the appellant. The Court of Appeal said in their judgment, at p 143, para 41:
That conclusion has not been challenged on behalf of the appellant and is in my opinion a tenable conclusion. While there is no direct evidence to show that the appellant knew what the consequences of his absconding would be, there is nothing to suggest a belief on his part that the trial would not go ahead in his absence or that, although absent, he would continue to be represented. His decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver. I note, however, the reservations expressed by my noble and learned friends concerning the finding of waiver, and recognise the force of their reasoning. If, contrary to my opinion, the Court of Appeal were wrong to make the finding of waiver, and I am wrong to accept it, I would nonetheless hold that the appellant enjoyed his convention right to a fair trial, for all the reasons given by my noble and learned friend Lord Rodger of Earlsferry.
16. I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, I too would dismiss this appeal. In view of the importance of the case, however, I would wish to add a few words of my own on two aspects of the matter.
17. First, in common, I believe, with all of your Lordships, I would hold that under English law the discretion of the trial judge to proceed with the trial in the absence of the defendant exists in principle (subject to the satisfaction of all the appropriate safeguards) not only after but before the trial has begun, though naturally it will have to be exercised with even greater care in the latter case. The decision on this point of the Court of Appeal in R v Jones, Planter and Pengelly  CrimLR 856 was in my judgment correct and should be upheld.
18. Secondly, I would not for my part criticise the conclusion of the Court of Appeal,  3 WLR 125, 143, in paragraph 41 of their judgment, that "this defendant had, clearly and expressly by his conduct, waived his right to be present and to be legally represented." In the case of an absconding defendant the critical question for the judge, as it seems to me, is whether the defendant has deliberately and consciously chosen to absent himself from the court. If so, then normally, no doubt, the judge would make an express finding to that effect, and would summarise his reasons for the finding. In the present case the judge made no such express finding but clearly drew an equivalent inference. The point need not, however, detain us, because no objection has been taken to the inference drawn by the judge. That being so, it would seem to me that, where, as in the present case, a defendant has had the advantage of legal advice and representation at all stages prior to the commencement of the trial, his deliberate and conscious choice to take no further part in the proceedings could permissibly be described as a waiver of his rights of attendance and of legal representation at his trial, both at common law and under article 6 of the Convention. But acknowledging the force of the views expressed by my noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry, and bearing in mind the near impossibility of the trial judge`s task, if he had to be satisfied of the defendant`s knowledge of the full extent of his rights before deciding whether those rights had been waived, I would prefer to express my conclusion in this appeal in agreement with my noble and learned friend Lord Bingham of Cornhill on this broader basis that, even if there were no waiver, the appellant nonetheless enjoyed the convention right to a fair trial.
19. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Rodger of Earlsferry. I agree with both of them. Like Lord Rodger of Earlsferry, I am not comfortable with the notion that the defendants waived their rights under article 6. Waiver requires consciousness of the rights which have been waived. I agree that there is nothing to show that the defendants must have known that if they did not turn up on the date set for trial, it would proceed in their absence and without representation on their behalf. I would prefer to say that they deliberately chose not to exercise their right to be present or to give adequate instructions to enable lawyers to represent them.
20. But I do not read the European cases as laying down that a trial may proceed in the absence of the accused only if there has been a waiver of the right to a fair trial. The question in my opinion is not whether the defendants waived the right to a fair trial but whether in all the circumstances they got one. It is whether on the particular facts of the case the proceedings, taken as a whole and including the appellate process, satisfied the requirements of the Convention. That, as I understand it, is the question which the European jurisprudence requires to be answered. For the reasons given by my noble and learned friends, with which I entirely agree, I think that the Court of Appeal was right to hold that there had been no infringement of article 6. I would therefore dismiss the appeal.
21. A person charged with a criminal offence has a right to be present at his trial and to defend himself in person or by instructing counsel to represent him. This right is recognised by the common law and by the European Convention on Human Rights.
22. In the present case the appellant was granted bail and, with full knowledge of the date on which his trial for the offence of robbery was due to commence, absconded before that date so that he was not present in court on that date and on subsequent dates on which his trial was re-listed to commence. The judge decided to proceed with the trial and the appellant was convicted by the jury. The issue which arises on this appeal is whether in such circumstances the Crown Court can conduct a trial in the absence of the defendant.