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

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    49. In this case I am unable to find anything in the actings of the appellant that would amount to a clear and unqualified election not to claim his rights under article 6 to be present or to be represented. Nor, of course, was there anything which could have acted as a safeguard attending any waiver of such important rights. Lord Bingham has pointed out that the appellant did not formally challenge the finding of the Court of Appeal that, by his conduct, he had waived these rights. Nonetheless, the matter was aired in the course of the hearing before your Lordships. Moreover, it concerns the application of the appellant's Convention rights and it is accordingly a matter about which the House must itself be satisfied.

    50. The appellant and his co-defendant certainly knew that a trial was to take place in their case. It had originally been fixed for 9 March 1998 but that date was vacated at the instance of the defence. The defendants last attended the police station in accordance with the terms of their bail in March 1998. Neither appeared for trial on 1 June of that year. Nor did they attend for trial on 5 or 6 October, by which time it had become clear that they had both absconded in order to avoid standing trial. The appellant was not represented at the hearings in October.

    51. These facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place. That does not, in itself, justify the conclusion that he had waived his right to be present or to be represented at any trial of the charges against him. Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent, but also knew that it could take place even though he was not there and even though he was not represented. In Taylor v United States 414 US 19 (1973) the United States Supreme Court felt able indeed to draw such an inference in a case where the defendant had absconded during his trial, leaving behind a judge, jury and witnesses ready to continue. In the circumstances of this case, however, neither inference can readily be drawn.

    52. So far as the first is concerned, it is sufficient perhaps to notice that the initial reaction of the very experienced judge, Judge Holloway, was that no trial could take place in the absence of the defendants. He had never heard of such a thing and neither had the colleagues whom he consulted. An official at the Criminal Appeals Office thought that it might be possible - but he could not put his finger on a case. It would, I believe, be rash to attribute to the appellant greater knowledge of the arcana of English criminal procedure than Judge Holloway and his colleagues actually possessed. Doubtless, the appellant would have been aware that, if eventually brought to justice, he would be punished for absconding to avoid trial. But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence. I am accordingly unable to draw the conclusion that the appellant had unequivocally waived his right to be present at any trial.

    53. The inference that he had waived his right to representation at any trial of the charge against him is even more difficult. One would have to infer that the appellant knew that, if the court decided to proceed to try him in his absence, it would do so in a situation where no counsel or solicitor was there to represent him on the very serious charge of armed robbery. In fact, at the hearing on 6 October 1998, the appellant was unrepresented from the outset, while the counsel and solicitor for his co-defendant withdrew from acting at the hearing. We were told that, in certain other cases, when a trial has proceeded in the absence of the defendant counsel have agreed to remain in court and to act, even in a limited way, on behalf of the defendant. The Court of Appeal [2001] 3 WLR 125 indeed envisaged that this might happen in future cases and that the presence or absence of representation would be a factor to be considered by the judge in deciding whether the trial should proceed in the absence of the defendant: see at p 136, para 22(5)(iv). There is nothing in the Court of Appeal's narrative of the facts to show whether the appellant knew that no counsel or solicitor would appear on his behalf at the hearing on 6 October or that the trial judge was likely to exercise his discretion by going on with the trial without the appellant being represented. In these circumstances I am again unable to conclude that, merely by deliberately absconding, the appellant had unequivocally waived his right under article 6(3)(c) of the European Convention to be represented by counsel at any trial of the charges against him.

    54. For these reasons I prefer to deal with the case on the basis that the appellant had not unequivocally waived his right to be present or to be represented under article 6(3)(c). His absence simply meant that he was not in a position to exercise either of these rights when the judge decided to proceed with the trial. The question then comes to be whether there has been a breach of the appellant's rights under article 6. As Mr Perry submitted, that question falls to be determined on a consideration of the whole of the proceedings, including those in the Court of Appeal.

    55. In arguing that the proceedings did not meet the requirements of article 6, Mr Solley referred to a number of decisions of the European Court of Human Rights. Lord Bingham has analysed them and I accordingly need not do so. While they provide useful guidance on particular points, the court has been at pains to emphasise that "it is not the court's function to elaborate a general theory in this area": Colozza v Italy (1985) 7 EHRR 516, 524, para 29. In saying this, the court was recognising that the contracting states have many different systems of procedure. The means by which they secure a fair trial in the absence of the defendant are correspondingly various. Here the issue has to be determined by looking at the way in which the courts handled the problem under English criminal procedure and by deciding whether, in the result, the appellant can be said to have had a fair hearing. In that regard the decisions of the Court of Human Rights relating to very different procedures can be of only limited assistance.

    56. The most striking feature of the trial in this case was, of course, that the defendants were not in court and there was no one to represent them. Mr Solley suggested that the significance of this could be gauged from Judge Holloway's assessment that, for this very reason, the defendants were likely to be found guilty by the jury. By contrast, at the next stage, in the Court of Appeal, the appellant was present at the hearing. He was also represented by senior and junior counsel, just as he was represented by senior and junior counsel before your Lordships' House. For these hearings he enjoyed the benefit of legal aid from public funds. The courts and legal system thus made no attempt to prevent him from being represented. In this respect his predicament is quite different, for instance, from that of the defendant in the proceedings before the appeal court at Aix-en-Provence in Poitrimol v France 18 EHRR 130. Here, in the Court of Appeal the appellant had every opportunity to exercise his rights to be present and to be represented. Mr Solley argued that this was too little, too late. But it is a matter to which your Lordships are entitled to attach considerable importance since it is plain that the representation was effective and that the Court of Appeal paid careful attention to the arguments advanced on behalf of the appellant. This is conclusively demonstrated not only by their meticulous judgment considering the points made by counsel, but also by the fact that, while the appellant's appeal against conviction was refused, his appeal against sentence resulted in the sentence being reduced from 13 to 11 years' imprisonment.

    57. The question must therefore be whether the hearing in the Court of Appeal, with the appellant fully and effectively represented, was such that, when the proceedings in this case are considered as a whole, one can say that the appellant has had a fair hearing in terms of article 6 even though he was not represented before the jury.

    58. In the course of summarising the principles to be applied by courts in relation to the trial of a defendant in his absence, Rose LJ indicated [2001] 3 WLR 125, 136, para 22(4) that the discretion to allow a trial to take place or continue in the absence of the defendant

    "must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented."

Lord Bingham has stressed this caution and I would do so too. I should also wish to associate myself with his comments as to the desirability of a defendant being represented even if he has voluntarily absconded. The decision of Judge Holloway to proceed with the trial in the absence of the defendants and in the absence of any representative was therefore exceptional. In taking it, he had regard to a number of factors. One, of course, was the fact that the defendants' absence was not due to illness or some other misfortune but to a deliberate decision on their part to abscond. The judge also took into account the fact that there were 35 witnesses who had come to court for the second time and who were anxiously awaiting the prospect of giving evidence. Their trauma following the robbery would be unlikely to go away until the defendants' guilt or innocence was determined in one way or another. If the trial did not proceed they would have to wait for an indefinite period, at the end of which some might not be willing to give evidence, some might have died and others might have emigrated. All kinds of problems could arise which would then be to the advantage of the defendants. In having regard in this way to the potential interests of the victims, jurors and wider public as well as to the rights of the accused, the judge was acting consistently with the established jurisprudence on article 6. The Court of Human Rights has recognised that in an appropriate case the interests of the defence are balanced against those of witnesses or victims called upon to testify: Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 70. The wider public interest is always a factor to be kept in mind in applying article 6: Brown v Stott [2001] 2 WLR 817. The judge's decision to proceed with the trial in this case was, of course, one of the matters which the Court of Appeal examined. They considered various criticisms which counsel for the appellant had made of the judge's decision but they concluded [2001] 3 WLR 125, 127, para 41:

    "In our judgment, the judge's exercise of discretion is not susceptible to effective challenge. He directed himself correctly in accordance with the law. He had very clearly in mind the possible prejudice to the defence if the trial proceeded without the defendant being present or represented. He did not have regard to any irrelevant factor. He reached a conclusion to continue with the trial which, in the light of his inevitable finding that the defendant had deliberately absented himself from court and from contact with his lawyers many months before trial, was well within the ambit of his discretion."

    59. The first thing to notice is, therefore, that in deciding to go ahead with the trial, the judge exercised a discretion which under English law will only rarely result in proceedings being taken in the absence of a defendant. The Court of Appeal examined the judge's exercise of that discretion in the circumstances of this case and held that his decision to proceed was sound, being well within the ambit of what he could properly do, having regard to the various factors which he mentioned. The fact that a judge has to make a positive decision to allow a trial to proceed in the absence of a defendant and the fact that only in exceptional cases will it be proper to do so are fundamental elements of the scheme for ensuring that any such proceedings will be fair. The reasoned decision of the Court of Appeal that the judge was justified in proceeding with the trial in the particular circumstances of this case is therefore an initial pointer towards the fairness of these proceedings.

    60. In turning to examine the course of the trial, it is necessary to bear in mind the broad outline of the case against the appellant. The evidence is described by Rose LJ [2001] 3 WLR 125, 141F-142C, para 37. I therefore need mention only the salient points.

    61. The armed robbery happened at Euston Street Post Office in Liverpool. A police officer, Police Constable Mangan, chased the appellant and arrested him in a yard about 500 metres away from the locus. The prosecution case was based not just on the evidence of the victims, bystanders and police officers but also on scientific evidence relating both to a jacket found near the yard and to the appellant's clothes. Moreover, there was evidence that the robbers had been talking to one another by radio. A walkie-talkie, like one which the appellant had bought some time before, was found near him. He was the holder of a licence for such a radio.

    62. In the face of this powerful body of evidence connecting him with the robbery there were only two possible ways in which the jury could have concluded that the appellant was not guilty. First, they might have concluded that he had been the victim of one or more dishonest policemen who had falsified the evidence, in particular by contaminating the clothing, to make it look as if the appellant had been involved. Alternatively, by some coincidence, the appellant and his co-defendant had happened to be in the wrong place at the wrong time, wearing the wrong clothes, with the result that they had been confused with the real robbers. These were the only possibilities that occurred to the judge. There were indeed no others. Before the Court of Appeal, with the appellant present, his counsel made no submission in support of the conspiracy line of defence. Nor, as Rose LJ explains, at p 144A-B, did counsel suggest that, if the appellant had attended the trial, he could or would have provided an innocent explanation for the contamination of his clothing, his presence in the vicinity of the robbery or his flight from the police. He could not have shown that he was unconnected with the walkie-talkie. I should record that in the proceedings before the House counsel did not challenge this passage in the judgment of the Court of Appeal nor did he seek to put forward any innocent explanation at this stage.

    63. In the absence of any innocent or more compelling explanation to account for the prosecution evidence, the chances of the appellant and his fellow defendant being convicted were obviously great. That is what the judge was recognising when, in considering whether to proceed with the trial, he expressed the view that the defendants would inevitably be convicted if the trial went ahead in their absence and without them being represented. But the Court of Appeal proceedings show that neither the presence at the trial of the appellant himself nor the presence of any representative would have led to any alternative theory being advanced to account for the prosecution evidence or to any additional evidence being led to contradict it.

    64. The jury were well aware of the two possible ways of accounting for the prosecution evidence against the appellant. In his summing up the judge was careful to draw the jury's attention to them, not only when giving an overview at the end but at various points during his account of the evidence. In this way the judge did all that he could to ensure that, when they considered their verdict, the members of the jury had these possible lines of defence in mind and were able to give them whatever weight they considered to be appropriate.

    65. Prosecuting counsel was conscious that he was dealing with defendants who were neither present nor represented. He took this matter into account in the way that he led his evidence. As he acknowledged when the judge was considering whether to allow the trial to proceed, there could be no question of cutting corners. The judge records that prosecuting counsel did indeed adopt a slightly more challenging approach to his own witnesses than would have been normal in a case where the defendants were represented. In particular, he looked to see whether there were any areas that ought to be highlighted in view of the fact that the defendants were not present or represented. While it is not suggested that, in itself, what prosecuting counsel did made up for the lack of representation for the appellant, it is nevertheless a matter to be considered when deciding whether the proceedings can be regarded as fair. It should also not be forgotten that, if prosecuting counsel had acted unfairly by taking advantage of the absence of representation to cut corners, misrepresent the evidence or blacken the defendants, the judge could have stopped the trial. Indeed he could have done so if he had detected unfairness in the proceedings, whatever its source. In fact, of course, prosecuting counsel acted with propriety and the judge saw no reason to intervene.

    66. The judge's summing up was obviously of even greater importance than usual. In it he gave the jury a number of directions specifically tailored to the situation where the defendants were neither present nor represented. The members of the jury were directed that they had to reach their verdict on the evidence which they had heard and on nothing else. They were not to speculate. These directions are of a familiar kind, but the judge stressed that, where the defendants were unrepresented, it was particularly important for the jury not to speculate. They were also told, specifically, that they must not speculate as to the reasons for the defendants' absence and that they should not assume that the defendants' failure to attend court in any way at all established that either or both of them were guilty. The jury should carefully assess the evidence as they would have done if the defendants had been present and had been represented by counsel. The judge also told the jury not to assume that the fact that the defendants had not been there to give evidence in any way at all helped the prosecution to prove their case. It was vitally important for the jury to remember that there was no burden placed on a defendant to prove that he was not guilty.

    67. These directions, carefully designed to deal with the particular situation that had arisen, were no mere formality. On the contrary, given the experience of judges and practitioners over many years and in various jurisdictions, it is proper to proceed on the basis that the jury, having taken an oath to do justice, will in fact have duly applied the directions when considering their verdicts. Indeed the system of trial by jury depends upon this assumption. I refer to the observations of Lord Hope of Craighead in Montgomery v HM Advocate [2001] 2 WLR 779, 810C-G and to the authorities which he cites. As he notes, the Court of Human Rights attaches importance to directions to a jury which are specifically designed to deal with a difficulty that has arisen in the proceedings. Pullar v United Kingdom (1996) 22 EHRR 391, 404 - 405, paras 37 - 41 and Gregory v United Kingdom (1997) 25 EHRR 577, 594-595, paras 46-48 may serve as examples. It is appropriate for this House also to attach importance to these directions.

    68. At this stage the various strands relating to the trial can be drawn together. The judge carefully considered whether to allow the trial to go ahead in the particular circumstances. The Court of Appeal reviewed his decision and supported it. At the actual trial various steps were taken to make due allowance for the fact that the appellant was neither present nor represented. Prosecuting counsel took care to lead the evidence fully and in a way that did not conceal any weaknesses. The possible lines of defence were put before the jury. Although no evidence was led to support those lines, the appellant can point to none that could have been led. The jury, who had taken the appropriate oath, were given specific directions that they were not to speculate as to the reasons for the defendants' absence and that the burden of establishing their guilt rested on the prosecution, just as if the defendants had been present. All these are important factors to be taken into account when considering the fairness of the proceedings as a whole.

    69. When the appellant was eventually apprehended, he appealed against his conviction and sentence. The nature of that appeal and the powers of the Court of Appeal are of relevance for the purposes of article 6 of the Convention. In considering the appeal against conviction, the Court of Appeal were applying the test in section 2(1) of the Criminal Appeal Act 1968 under which they had to allow the appellant's appeal if they thought his conviction was unsafe. In Condron v United Kingdom (2001) 31 EHRR 1, 24, para 65 the Court of Human Rights emphasised that, where the issue was raised, the Court of Appeal required to consider whether the appellant's rights under article 6 had been secured:

    "the question whether or not the rights of the defence guaranteed to an accused under article 6 were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any inquiry into the issue of fairness."

Here the Court of Appeal [2001] 3 WLR 125 followed that approach. Rose LJ expressed his conclusion on the appellant's appeal against conviction in these words, at p 144B, para 41:

    "In our judgment there is no reason, in all these circumstances, to regard his conviction as unsafe or his trial as unfair and accordingly his appeal against conviction is dismissed" (emphasis added).

    70. So the proceedings in the Court of Appeal allowed the appellant to advance arguments not merely on the substantive merits of his conviction but also on the fairness of the trial. The Court of Appeal had power to consider both aspects and, as their judgment and their conclusion show, they were conscious of the need to examine both aspects and they did so.

    71. Mr Solley argued that, even though the Court of Appeal could and did review the merits of the conviction and the fairness of the proceedings in this way, the appeal process was insufficient to ensure the fairness of the proceedings under article 6. What was required, he said, was that the appeal should be conducted before a court which could rehear the evidence. In this connexion he relied on the observation of the European Court in Poitrimol v France 18 EHRR 130, 145, para 31 that

    "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."

Here, he said, the appellant had been unable to obtain a fresh determination from a jury in a trial in which he had been present and represented. It is true, of course, that there has been no new trial of that kind. But, as it explained in Colozza v Italy 7 EHRR 516, the court is not concerned to lay down general doctrines in this area. The passage in Poitrimol v France has to be read in the context of that case, involving a particular form of French proceedings.

    72. M Poitrimol had been tried in the tribunal correctionnel in Marseilles where, though absent, he had been represented. While he appealed against his conviction, he made no complaint about the fairness of those proceedings. His complaint was that the subsequent proceedings before the cour d'appel at Aix-en-Provence had been unfair. There is nothing to suggest that those proceedings would have involved anything more than pleadings on behalf of M Poitrimol. The appeal court refused his request to be tried inter partes in his absence because there was an outstanding warrant for his arrest. It therefore tried the case without M Poitrimol being present or being represented by his counsel, but under article 410 of the Code of Criminal Procedure the proceedings were conducted "as if he [had been] present". The appeal court eventually ruled that the pleadings on his behalf were inadmissible and upheld the judgment of the lower court in its entirety. The significance of the proceedings being conducted as if M Poitrimol had been present was that he thereby lost the right of a defendant in proceedings in absentia to use the article 489 procedure to render the judgment null and void by simply applying to the court to set it aside and to rehear the case. His only possible recourse against the judgment was an appeal to the cour de cassation, but that route was blocked by a (separate) rule that no such appeal lay where there was an outstanding warrant for his arrest. In these circumstances the Strasbourg court held that there had been a breach of article 6 of the Convention.

    73. It is apparent, therefore, that the observation on which Mr Solley relied was made in a very particular context where the appeal court at Aix had refused to consider the submissions of M Poitrimol's lawyer and had also effectively cut off any further redress, whether by a rehearing before the appeal court or by an application to the cour de cassation. In effect, he had no means of having his case heard at all.

    74. Here, by contrast, the appellant has been able to appeal, with the benefit of legal aid, not only to the Court of Appeal but indeed to your Lordships' House. The Court of Appeal would not, of course, ever rehear a case in the sense of having all the witnesses led before them. That is not part of the English system, for in that system justice can be done without it. But the Court of Appeal have full powers to consider any legal issue, to consider the transcript of the relevant parts of the evidence and to receive additional evidence if they consider it necessary or expedient to do so in the interests of justice: section 23(1)(c) and (2) of the 1968 Act. Having considered any additional evidence, the Court of Appeal may, of course, decide to refuse the appeal. But, equally, they may decide to allow the appeal outright or they can allow it and, if they consider that the interests of justice so require, order a retrial - at which the defendant would, of course, be represented. The House has recently given guidance on the exercise of these powers in R v Pendleton [2002] 1 WLR 72 and has stressed that the Court of Appeal should consider a conviction to be unsafe if the additional evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. In my view, under the English system, these wide powers of the Court of Appeal are sufficient, even in the case of a trial in absence, to allow the court to monitor and secure the fairness of the proceedings.

    75. For present purposes, the mere existence of the power to receive additional evidence is significant. The appellant could have invoked it if his absence or lack of representation had actually meant that the jury reached their verdict in ignorance of potentially exculpatory evidence. Of course, he could not in fact suggest this and therefore he could not invoke this particular power. But it was available: that is one of the guarantees of the fairness of the proceedings.

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