when a defendant voluntarily absents himself from his trial, but is later produced, the court should not simply force him to “re-join” the trial at the stage it has reached, but should consider recalling witnesses or ordering a retrial.
On 21 September 2012, the appellant was convicted of a number of sexual offences. On 18 October, he was sentenced to a total term of 7 years imprisonment. He appealed against conviction and sentence. The grounds of appeal against conviction were as follows: the Judge erred when he ruled on 18 and 19 September that the trial should proceed in the appellant's absence; on production of the defendant on 20 September, he erred when he declined either to order a re-trial or to direct that Crown witnesses be re-called for cross examination.
The appellant failed to attend on the first morning of trial, 17 September, and a bench warrant was issued. He failed to attend on the second day and the prosecution applied for the trial to commence in the appellant's absence. The application was opposed. The Judge recognised that he had discretion in the matter but recognised that the decision to proceed should be exercised only in rare and exceptional cases. He recognised that an adjournment might lead to the appellant being caught but considered that a re-listing might postpone the trial for many months and therefore decided that the trial should start.
On the third day the appellant was still not present. Counsel and his instructing solicitors felt obliged to withdraw. After the recorded evidence in chief of witness H, the Judge asked some questions of her. However, important inconsistencies in her evidence were not explored. Another prosecution witness, V, gave evidence in chief before the jury and was also questioned by the Judge.
The appellant was arrested and attended court the following day. The Judge made it clear that he was not going to "wind the clock back" and stated the appellant must "re-join" the trial at the stage which it had reached. Defence counsel made an application for the discharge of the jury which was refused.
The Court of Appeal recognised that a defendant who voluntarily absents himself from a trial cannot expect, in all cases, to have the benefit of usual trial procedures, following R v Jones  AC 1. Nevertheless there was still a duty to see how the fairness of the trial can best be upheld at each stage.
Held, In this case insufficient was done following the appellant's arrest and production at court on 20 September to see what could be done to achieve what the circumstances required in the interests of all concerned and in the interests of justice. Appeal allowed, convictions quashed and a re-trial ordered.
Enter your email address below to sign up and receive updates from our news, articles and cases.
For help and advice talk to a member of our clerking team. They can advise on the best options for your matter.
Call: +44 (0) 20 7353 3102