|Judgments - Regina v Jones (On Appeal From The Court of Appeal (Criminal Division))
23. I consider that the authorities make it clear that a court has power to proceed with a trial when the defendant has deliberately absconded before the commencement of the proceedings to avoid trial, although it is clear that the power to proceed in such circumstances should be exercised by the trial judge with great care.
24. The authorities also show that there are two stages in the approach to be taken to the matter. The first stage is that although the defendant has a right to be present at his trial and to put forward his defence, he may waive that right. The second stage is that where the right is waived by the defendant the judge must then exercise his discretion as to whether the trial should proceed in the absence of the defendant.
25. The matter was discussed in the judgments of the court in Victoria in R v Abrahams 21 VLR 343 where the defendants were present at the commencement of the trial but were absent at a later stage due to illness. Williams J said, at p 346:
26. Hood J stated, at p 353:
27. In R v Jones (Robert) (No 2)  1 WLR 887 the defendant absconded during his trial which the judge ordered should continue in his absence. He was convicted and eight months after his conviction applied for an extension of time for leave to appeal, and his application was refused by the Court of Appeal. The Court of Appeal held that the judge had exercised his discretion properly and cited with approval the judgments in R v Abrahams. Roskill LJ stated, at p 892:
28. In R v Jones, Planter and Pengelly  CrimLR 856, where the defendants were absent from the commencement of the trial, Lord Lane CJ stated (see transcript):
29. Mr Solley QC, for the appellant, relied on the decision of the United States Supreme Court in Crosby v United States (1993) 506 US 255. In that case the defendant did not appear at the commencement of his trial and the trial proceeded in his absence and he was convicted. The Supreme Court allowed his appeal. However I do not consider that that decision supports the appellant's case because it was based on Rule 43 of the Federal Rules of Criminal Procedure which provided:
Justice Blackmun stated:
30. Moreover, there are other statements by American appellate courts cited in the judgment of the Supreme Court which give support to the view that, in the absence of a provision such as Rule 43, there is no reason of substance for distinguishing between the absence of a defendant at the commencement of a trial and his absence at a later stage. Thus in Crosby v United States itself the intermediate appellate court stated:
And in Government of the Virgin Islands v Brown (1975) 507 F2d 186,189 another appellate court stated that there are no "talismanic properties which differentiate the commencement of a trial from later stages".
31. Mr Solley also sought to rely on the jurisprudence of the European Court of Human Rights. Article 6 of the Convention provides that in the determination of any legal charge against him a person is entitled to a fair trial and article 6(3)(c) provides that a person has the right "to defend himself in person or through legal assistance of his own choosing".
32. In my opinion the jurisprudence of the Court of Human Rights does not assist the appellant. There is no decision of that court relating to a case where a defendant, with full knowledge of the date on which it was to commence, deliberately absconded before his trial at which, if he had been present, he would have been able to exercise the right given by article 6(3)(c).
33. In Colozza v Italy 7 EHRR 516 where the applicant was declared by a judge to be untraceable and it was not established that the notice of the criminal proceedings had been personally served on him and he was convicted in his absence, the court stated at paragraphs 28-29 of its judgment, at pp 524-525:
34. In Poitrimol v France 18 EHRR 130, 145 the court stated, at paragraph 31:
35. In the present case I consider that the deliberate decision of the defendant to abscond in breach of his bail conditions to avoid his forthcoming trial on a serious charge justifies the inference that he had no intention of putting forward a defence at that trial and that therefore he did waive his right to defend himself in an unequivocal manner. Accordingly I am of opinion that the Court of Appeal was entitled to hold that there had been such a waiver. I further consider that the position of the appellant was adequately safeguarded in two ways. First, it was safeguarded by the fair and careful way in which the judge, and also prosecuting counsel, conducted the trial. As the Court of Appeal  3 WLR 125 stated in paragraph 41 of its judgment, at p 143:
Secondly, the position of the defendant was safeguarded by his right to appeal against his conviction to the Court of Appeal. He exercised this right and the Court of Appeal conducted a careful review of the evidence against him and concluded at paragraph 41 of its judgment that "the case against the defendant was in our view overwhelming".
36. My noble and learned friends Lord Hoffmann and Lord Rodger of Earlsferry have expressed reservations about the finding of the Court of Appeal as to waiver. As I have stated I consider, with respect, that the Court of Appeal was entitled to make this finding. But I would add that it is self-evident that the right given by article 6(3)(c) of the Convention to the defendant to defend himself in person or to instruct counsel to defend him is a right to be exercised by the defendant himself - it cannot be exercised on his behalf by someone else. Therefore even if the finding could not be made in the present case that there was an unequivocal waiver by the defendant, I consider that where no defence was put forward at the trial in consequence of the defendant's deliberate decision not to be present, there was no violation of the right given to him by article 6(3)(c) - rather the defendant chose not to exercise that right. As Salmon J stated in delivering the judgment of the Divisional Court (constituted by himself, Lord Parker CJ and Ashworth J) in R v Governor of Brixton Prison, Ex p Caborn-Waterfield  2 QB 498, 508-509:
Whilst this observation was not made with reference to article 6(3)(c) I consider that it is equally applicable to it.
37. Mr Solley QC further relied on the principle stated in R v Bertrand (1867) LR 1 PC 520, 534 (which was referred to in the judgments in R v Abrahams 21 VLR 343):
Mr Solley submitted that the public interest in the proper administration of justice free from doubt or chance of miscarriage required a defendant to be present at his trial at its commencement or at any rate for some part of it, to ensure that the case of the prosecution was properly challenged and tested, and that there could not be public confidence in the reliability of a conviction if the defendant had not been present at his trial.
38. The discretion of a judge to proceed with a trial in the absence of the defendant is one to be exercised with great care, but in my opinion there can be circumstances where in the interests of justice a judge is entitled to decide to proceed, particularly when the defendant has deliberately absconded to avoid trial. Some of the circumstances in the present case were described as follows by the trial judge, Judge Holloway, in his careful ruling:
In these circumstances I consider that the judge was entitled to come to the conclusion that the trial should proceed and, in my opinion, as I have stated, the public interest in a just result was safeguarded by the fair and careful way in which the judge and prosecuting counsel conducted the trial and by the right of the defendant to challenge his conviction in the Court of Appeal.
39. I am in respectful agreement with my noble and learned friend Lord Bingham of Cornhill that the matters relevant to the exercise of the discretion set out by the Court of Appeal in paragraph 22(5) of its judgment  3 WLR 125, 136 constitute a most valuable guide, and I further agree with the observations which he makes in respect of that list in paragraphs 14 and 15 of his speech.
40. For the reasons which I have given I would answer the certified question in the affirmative and would dismiss this appeal.
LORD RODGER OF EARLSFERRY
41. I have had the advantage of reading the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft. I agree with him that the appeal should be dismissed, but on the matter of the European Convention on Human Rights I would reach that result by another route.
42. As Lord Bingham has explained, there is a tract of authority showing that for many years English courts have had the power to continue a criminal trial in the absence of the defendant. Understandably, counsel for the appellant did not seek to challenge these cases. While there may be pragmatic arguments to suggest that there is a difference between a trial that begins in the absence of the defendant and a trial that begins with the defendant present but has to continue in his absence, I can identify no difference of principle between the two situations. That being so, as a matter of principle, there must indeed be power for the English courts to start a trial when the defendant absconds. That power does not appear to have been explicitly recognised in the cases until the decision of the Court of Appeal (Criminal Division) in R v Jones, Planter and Pengelly  Crim LR 856. In the present case the Court of Appeal  3 WLR 125, 136 (Rose LJ) reviewed the authorities and concluded that in English law "the trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives". Having had the advantage of considering the analysis of the English authorities in Lord Bingham's speech, I would respectfully agree with it and with Rose LJ's conclusion as to the effect of those authorities.
43. In arguing that there was no power to allow a trial to begin in the absence of the defendant, counsel for the appellant drew attention to the position in Scotland where, subject to one exception, under solemn procedure the accused must be present throughout his trial. Under that system it is indeed impossible for the court to begin or continue a trial when the accused absconds. The controlling philosophy of Scots law on this matter is the same today as two hundred years ago when, in his Commentaries on the Law of Scotland, respecting Crimes (1844), vol II, pp 269-270, Baron Hume wrote:
I refer also to Alison's Practice of the Criminal Law of Scotland, (1833), p 349. Although not mentioned by Hume, there was in fact some statutory support for the rule in section 10 of the Criminal Justice Act 1587, providing inter alia that all the witnesses and proof were to be "allegit, ressonit and deducit to the assyse in presence of the pairtie accusit in face of iudgement and na utheris wayes". This provision was, somewhat prosaically, consolidated in section 145(1) of the Criminal Procedure (Scotland) Act 1975 as "no part of a trial shall take place outwith the presence of the accused" and is now to be found in section 153(1) of the Criminal Procedure (Scotland) Act 1995. If, for instance, an accused falls ill during the trial and cannot attend, the trial must be adjourned until he is fit or, if that is not practicable, the diet must be deserted pro loco et tempore, authority being given to the Crown to start fresh proceedings when the accused recovers. So the requirement for the accused to be present at his trial is applied consistently.
44. The only significant change to the Scottish system since Baron Hume's time is that statute now confers a specific power on the trial judge to order the accused to be removed if he misconducts himself so as to make it impossible for a proper trial to take place. In the case of an unrepresented accused, the court must appoint counsel or a solicitor to represent his interests during his absence: section 153(2). This exception was enacted in 1980 after doubts had arisen as to whether the judge had any such power at common law to allow a trial to proceed in the accused's absence even where he was disrupting it. The contrast with the flexible approach of English law could not be more stark.
45. Hume was, of course, well aware of the risk that accused persons would abscond and so make a trial impossible. He explains (Commentaries, vol II, pp 270-271) how in his day the courts tackled the problem by pronouncing a sentence of fugitation or outlawry in order either to compel "those wicked and dangerous persons, who abscond owing to consciousness of their guilt" to appear in court or else to drive them "out of the country". Alison's Practice, pp 349-354 is to the same effect. The system of fugitation was still being operated at least as late as the end of the 19th century: HM Advocate v Monson (1893) 1 Adam 114, 116 and Sweeney v HM Advocate (1893) 21 R (J) 44. It was eventually abolished by section 15(2) of the Criminal Justice (Scotland) Act 1949. Nowadays the penalty for failing to appear for trial is somewhat less drastic. If on bail, the accused who fails to appear can be prosecuted for breach of the relevant condition of his bail. In solemn proceedings, the maximum sentence is imprisonment for two years. Alternatively, proceedings may be taken for contempt of court, again with a maximum sentence of two years' imprisonment. It would be idle to pretend that these sanctions are so effective that accused persons never fail to attend for trial and never abscond during their trial.
46. Under the Scottish system, if an accused absconds before or during the trial or is taken ill during the trial and cannot attend, jurors and witnesses may well be inconvenienced. There is also a risk that recollections may fade before the accused is traced and brought back for trial. Sometimes, it is true, a trial has to proceed against only some of the accused when, ideally, all should have been tried together. Depending on the circumstances, that may be thought to affect the presentation of their case either by the Crown or by the other accused. But Scots law has always struck the balance in this way between the rights of the accused and these wider interests of justice. So courts and prosecutors accept the position - especially, perhaps, because dock identification of the accused is the norm and trials, which are structured accordingly, really require his presence. In any event in 1975, and again in 1995, Parliament endorsed the balance as previously struck by the law of Scotland. The significant point is that, for whatever reason, Parliament has never legislated in the same way for England and Wales to require the trial to take place in the presence of the defendant. More particularly, Parliament has refrained from doing so, even though the English courts have for many years been exercising a discretion to allow trials to be completed when the defendant is not present. The inference which I draw is that, for England and Wales, Parliament remains content for these matters to be regulated by the exercise of a judicial discretion, weighing the relevant factors, including, where appropriate, a defendant's flagrant decision to abscond.
47. In describing the approach which courts should adopt in the light of the authorities on English law and on the European Convention, the first two principles which the Court of Appeal  3 WLR 125 laid down were these, at pp 135-136, para 22:
Applying those principles to the appellant's case, the Court of Appeal held, at p 143, para 41:
The attractions of that robust approach are obvious. For my part, however, I am not satisfied that in the circumstances of this case the appellant can be said to have waived these rights under article 6 of the Convention.
48. The European Court of Human Rights has held in Poitrimol v France 18 EHRR 130, 145, para 31 that any waiver of a defendant's right to appear and to be represented at his trial
The court was there applying its previous decisions to the same effect in Pfeifer and Plankl v Austria (1992) 14 EHRR 692, 712, para 37 and earlier cases. The Privy Council adopted that approach to waiver of a right to a fair hearing before an independent and impartial tribunal in Millar v Dickson 2002 SC (PC) 30. Lord Bingham of Cornhill held, at p 43G - H, para 31 that for these purposes "unequivocal" meant "clear and unqualified". A defendant could not waive a right if he was unaware that he could make the claim in question. I refer also to the opinion of Lord Hope of Craighead at pp 50G - 51C, paras 54 and 55.