9. Jury Trial Procedure Flashcards
What is the general rule on the accused’s presence at trial?
They should be present throughout the trial.
How is attendance of the accused at the Crown Court secured?
Either through magistrates remanding in custody or bailing
Can the judge issue any warrants if an accused fails to attend the Crown Court?
Yes, a bench warrant may be issued forthwith
Is there any point the accused MUST be present in the crown court?
Yes, in order to plead.
Does the court need to get an interpreter for an accused?
Yes, if necessary
Can the court proceed in the defendant’s absence?
Except to plead in the mags (other than where he is represented legally in the mags), yes, where the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite their absence
Can the court proceed with matters which constitute part of the trial proceedings in absence of defence counsel?
No
In what circumstances can the accused’s presence be dispensed with?
(a) as a result of the misbehaviour of the accused;
(b) where his absence is voluntary;
(c) when the accused is too ill to attend;
(d) following the death of the accused.
What principles should the trial judge apply when dealing with an absent defendant?
(a) An accused has, in general, a right to be present at the trial and a right to be legally represented.
(b) Those rights can be waived, separately or together, wholly or in part, by the accused:
(i) they may be wholly waived if, knowing or having the means of knowledge as to when and where the trial is to take place, the accused is deliberately and voluntarily absent and/or withdraws instructions from legal representatives;
(ii) they may be waived in part if, being present and represented at the outset, the accused, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws instructions from legal representatives.
(c) The trial judge has a discretion as to whether a trial should take place or continue in the absence of an accused and/or the accused’s legal representatives. The judge is required to warn the defendant at the PTPH of the risk of the trial continuing in the defendant’s absence (CrimPR 3.21(2); see Supplement, R3.21).
(d) That discretion 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 accused is unrepresented.
(e) In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:
(i) the nature and circumstances of the accused’s behaviour in being absent from the trial or disrupting its continuation, and, in particular, whether the behaviour was deliberate, voluntary and such as plainly waived the right to appear;
(ii) whether an adjournment might result in the accused being caught or attending voluntarily and/or not disrupting the proceedings;
(iii) the likely length of such an adjournment;
(iv) whether the accused, though absent, is, or wishes to be, legally represented at the trial or has waived the right to representation;
(v) the extent to which the absent accused’s legal representatives are able to present the defence;
(vi) the extent of the disadvantage to the accused in not being able to give his or her account of events, having regard to the nature of the evidence;
(vii) the risk of the jury reaching an improper conclusion about the absence of the accused (but see (f) below);
(viii) the seriousness of the offence to the accused, victim and public;
(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
(x) the effect of delay on the memories of witnesses;
(xi) where there is more than one accused and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
(f) If the judge decides that a trial should take place or continue in the absence of an unrepresented accused, the judge must ensure that the trial is as fair as the circumstances permit. In particular, reasonable steps must be taken, both during the giving of evidence and in the summing-up, to expose weaknesses in the prosecution case and to make such points on behalf of the accused as the evidence permits. In summing-up the judge must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.
What is the summary of principles appropriate to dealing with an absent defendant?
- They generally have a right to be there
- They may waive it via their deliberate decision to not attend or their behaviour during attendance (but it is generally desirable that they are represented)
- Court has a discretion to continue
- Prime importance is fairness to defence, but also to pros
- Court should take into account all circumstances (but not the seriousness of the offence)
- If proceeding, the judge must take steps to ensure the trial is fair (such as pointing out weaknesses in pros case)
When can it be said that an accused has absented himself via his own misbehaviour?
Where he has behaved in an unruly fashion in the dock e.g. shouting or intimidating jurors/witnesses
Where the judge sees the defendant misbehaving in the dock, should he immediately remove him from the dock?
No, the judge should warn him. Judge may threaten him with contempt.
he may be permitted to return at a later stage if excluded
should the accused be handcuffed in the dock?
No, unless there is a real risk of violence or escape and there is no alternative.
Can the accused be said to have waived his right to attend his trial where he refuses to be brought into court from the cells?
Yes, only if the judge is satisfied that the right has been unequivocally waived.
However, it may be better to allow time to cool off and to continue the trial in the accused’s absence due to the fairness required.
Can sentence be passed in the accused absence where they are voluntary absent?
Yes.
Can the trial continue where an accused who attended at the commencement of the trial later goes voluntary absent?
Yes, they have that discretion
Can the judge say that an accused has voluntarily absented himself through intoxication?
Yes
What should the judge question when an accused voluntarily absents himself after the trial starts?
(a) Whether D had deliberately absented himself and
(b) Whether there were reasonable steps that could be taken to secure his attendance.
Can the trial proceed in the absence of an accused who has not been arraigned?
Yes, but only where the court is satisfied that the accused has waived the right to be arraigned.
If the indictment has been amended after the accused has absconded, then it cannot necessarily be assumed that he has waived that right. It depends upon a factual analysis.
What alternative to continuing the trial in absence is there where an accused voluntarily absents himself?
Discharging the jury and therefore allowing a retrial.
How should the judge make the decision between continuing a trial in absence and discharging the jury for a new trial where the accused voluntarily absents himself?
This exercise involves more than an assessment of adequacy of the evidence to explain the accused’s absence, and required an assessment of fairness
What will the court do where the accused voluntarily absents himself from the trial?
Issue a warrant.
Where the accused is not present for their crown court trial for reasons beyond their control, may the trial continue in their absence?
No, unless they consent or if the case can be fully presented, including the accused’s own written evidence, without unfairness
What should the judge do where the defendant is sick?
Adjourn the case until they recover or discharge the jury.
If not satisfied with the adequacy of the evidence, it should provide an opportunity for further evidence before continuing and must always have regard to fairness.
The exceptions to this are:
(a) As mentioned in Howson, if there are several accused and one falls sick, the trial may continue in that accused’s absence provided that the evidence and proceedings relate entirely to the cases against the co-accused and have no possible bearing on the absent accused’s case.
(b) Where D’s voluntary ingestion of drugs makes his participation in the trial impossible, the situation may well be otherwise (Simms [2016] EWCA Crim 9).
(c) Where D had a heart condition preventing his attendance but it was considered that his counsel were able to argue his case effectively and he was given the opportunity to give written evidence (Hamberger).