Judgments - Regina v Jones (On Appeal From The Court of Appeal (Criminal Division))

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    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:

    "The primary and governing principle is, I think, that in all criminal trials the prisoner has a right, as long as he conducts himself decently, to be present, and ought to be present, whether he is represented by counsel or not. He may waive this right if he so pleases, and may do this even in a case where he is not represented by counsel. But then a further and most important principle comes in, and that is, that the presiding judge has a discretion in either case to proceed or not to proceed with the trial in the accused's absence."

    26. Hood J stated, at p 353:

    "All that we are here deciding, in my opinion, is that the presiding judge may in misdemeanours proceed without the presence of the prisoner, where the absence is voluntary. He has in law a discretion, but that discretion should be exercised with great reluctance, and with a view rather to the due administration of justice than to the convenience or comfort of anyone."

    27. In R v Jones (Robert) (No 2) [1972] 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:

    "This court respectfully adopts that language as correctly stating the position. The only question this court has to decide is whether Judge Gillis exercised his discretion properly. In the view of this court he plainly did so exercise it.…

    "To grant this application at this stage would, in the view of this court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so. It may also have as a side-effect, increasing the reluctance of a court in a very long trial to grant bail lest the applicant's conduct be repeated by others. To put a premium on jumping bail is something which this court is not for one moment prepared to countenance. This application is entirely without merit, notwithstanding the skill with which it has been advanced. There is no ground whatever for granting this extension of time. The applicant has brought this entirely on his own head, and he must now take the consequences. The application therefore is refused."

    28. In R v Jones, Planter and Pengelly [1971] CrimLR 856, where the defendants were absent from the commencement of the trial, Lord Lane CJ stated (see transcript):

    "It is quite plain in principle that there is a discretion in the judge to order a trial to continue or indeed to start in these circumstances, not only where a person voluntarily absents himself, but also, as the judgment of Griffiths LJ in R v Howson 74 CrAppR 172 indicates, where he has involuntarily been absent."

    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:

    "(a)  Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

    (b)  Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present,

    (1)  is voluntarily absent after the trial has commenced …. "

Justice Blackmun stated:

    "The language, history, and logic of Rule 43 support a straightforward interpretation that prohibits the trial in absentia of a defendant who is not present at the beginning of trial. Because we find Rule 43 dispositive, we do not reach Crosby's claim that his trial in absentia was also prohibited by the Constitution."

    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:

    "It would be anomalous to attach more significance to a defendant's absence at commencement than to absence during more important substantial portions of the trial."

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:

    "In conclusion, the material before the court does not disclose that Mr Colozza waived exercise of his right to appear and to defend himself or that he was seeking to evade justice. It is therefore not necessary to decide whether a person accused of a criminal offence who does actually abscond thereby forfeits the benefit of the rights in question …

    "It is not the court's function to elaborate a general theory in this area. As was pointed out by the Government, the impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to dispersal of the evidence, expiry of the time limit for prosecution or a miscarriage of justice. However, in the circumstances of the case, this fact does not appear to the court to be of such a nature as to justify a complete and irreparable loss of the entitlement to take part in the hearing."

    34. In Poitrimol v France 18 EHRR 130, 145 the court stated, at paragraph 31:

    "Proceedings held in an accused's absence are not in principle incompatible with the Convention if the person concerned can subsequently obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact. It is open to question whether this latter requirement applies when the accused has waived his right to appear and to defend himself, but at all events such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance."

    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 [2001] 3 WLR 125 stated in paragraph 41 of its judgment, at p 143:

    "This defendant, as it seems to us, had, clearly and expressly by his conduct, waived his right to be present and to be legally represented. Thereafter the course of the trial was, as it seems to us, as fair as it could be, the defendant having waived those rights. Prosecuting counsel (whose duty under paragraph 11.1 of the Bar Council's Code of Conduct was not to attempt to obtain a conviction by all means at his command and not to regard himself as appearing for a party, but to lay before the court fairly and impartially the whole of the facts which comprised the case for the prosecution) and the judge did all they reasonably could to ensure that the trial was fair, in the unusual circumstances prevailing."

    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 [1960] 2 QB 498, 508-509:

    "The applicant was treated with complete fairness and, indeed, was shown every consideration by the French court; he was fully apprised of the very strong case he had to meet, and repeatedly given the fullest opportunity of meeting it. He elected not to do so and on three separate occasions, without any excuse, he failed to appear in person before the French court. Accordingly, it certainly does not lie in his mouth to complain that the case was dealt with in his absence."

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):

    "It is a mistake, moreover, to consider the question only with reference to the prisoner. The object of a trial is the administration of justice in a course as free from doubt or chance of miscarriage as merely human administration of it can be— not the interests of either party. This remark very much lessens the importance of a prisoner's consent, even when he is advised by counsel, and substantially, not, of course, literally, affirms the wisdom of the common understanding in the profession, that a prisoner can consent to nothing."

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:

    "There are 35 live witnesses due to give evidence today some of whom are civilians who must have experienced a quite terrifying event when they were held up by armed masked men and this robbery took place. Some of the civilian witnesses have already indicated that they are less than happy to attend on a future occasion. Some of the prosecution witnesses have already been dispensed with because of the concern that they have about continual delay …

    In normal circumstances I am bound to say that my reaction initially to the proposition was that it would seem wrong to pursue any criminal trial, and particularly one as serious as this, in the absence of either a defendant or indeed in the absence of any assistance from counsel or solicitors on their behalf. But on the other hand there is another competing interest which seems to me to take precedence over that particular one and that is that there are 35 witnesses outside court who have come here for the second time today and who are anxiously awaiting the prospect of having to give evidence and in view of the defendants' deliberate absenting of themselves the trauma that some of them have experienced during the course of this incident is unlikely to go away until such time as they actually have had this case finally dealt with either with the defendants pleading guilty, which is obviously not their intention, or indeed the trial taking place and a jury coming to a decision. this is a strong case for the prosecution where clearly the defendants have frustrated and deliberately frustrated the authorities in trying to have this case finally concluded …

    I cannot in all conscience feel that it is appropriate that those witnesses should be made to wait for what could be 6, 12, 18 months, two years or some other period of time well into the future by which time some may not be willing to give evidence, some may have passed on, some may have gone to another part of the world, emigrated: all sorts of problems can arise which would then be to the advantage of these absent defendants."

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 [2001] 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

My Lords,

    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 [1991] Crim LR 856. In the present case the Court of Appeal [2001] 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:

    "Let us now suppose, that the accused is absent at calling the libel, but the prosecutor appears and insists. With one exception, which was introduced in evil times, in cases of treason, it has been our invariable custom, that on no sort of proceeding can here take place, as for trial of the crime libelled. It is considered, that unless the accused is present to take charge of his own interest, there can be no security for doing full justice to his case; for pleading all his defences, bringing forward all his evidence, stating all objections to the evidence on the other part, and still less for taking advantage of all those pleas and grounds of challenge, which may arise in the course of the proceedings in the trial. Besides, (though this is certainly an inferior consideration,) the judges ought not to be called on to apply or declare the law, except in circumstances which afford the means of carrying their sentence into effect. On these grounds, the peremptory rule has long been settled, of requiring the personal presence of the pannel in every step, from first to last, of the trial, with the exception only of continuations of the diet; so that if he even withdraw at the last stage of all, after a verdict of guilty has been returned against him, still the court cannot proceed to apply the sentence of the law."

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 [2001] 3 WLR 125 laid down were these, at pp 135-136, para 22:

    "(1) A defendant has, in general, a right to be present at his trial and a right to be legally represented.

    (2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him."

Applying those principles to the appellant's case, the Court of Appeal held, at p 143, para 41:

    "This defendant, as it seems to us, had, clearly and expressly by his conduct, waived his right to be present and to be legally represented."

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

    "must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance."

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.

 
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