Absent a Defendant

Question 1

Mag. - In what circumstances can the court proceed without the defendant if over/under 18?

Answer 1

• the court may try an absent defendant who is under 18 years of age and
• must try an absent defendant who is 18 or over unless it appears to the court to be contrary to the interests of justice to do so.

Question 2

Mag. - When should a court not proceed in the absence of a defendant?

Answer 2

the court shall not proceed in the defendant’s absence if it considers that there is an acceptable reason for the defendant’s failure to appear, but the court need not enquire into the reasons for the accused’s failure to appear

Question 3

CC - In what circumstances can the CC proceed without the D?

Answer 3

the court must not proceed if the defendant is absent, unless the court is satisfied that:

• the defendant has waived the right to attend;

and

• the trial will be fair despite the defendant’s absence.

A Crown Court trial is likely to proceed in the defendant’s absence where the defendant deliberately fails to attend.

Question 4

CC - What if the D is on bail and fails to attend?

Answer 4

• He commits an offence under s.6 Bail Act 1976

and

• liable to be arrested because the judge is likely to issue a warrant for the defendant’s arrest (known as a ‘bench warrant’).

Question 5

CC - what factors will the judge have regard to:

Answer 5

• The nature and circumstances of the defendant’s behaviour in absenting from the trial or disrupting it and, in particular, whether the behaviour was voluntary and so plainly waived the right to be present;
  .
• Whether an adjournment might resolve the matter by the defendant attending the proceedings at a later date, or by being caught or not disrupting the proceedings;
• The likely length of any such adjournment;
  .
• Whether the defendant, despite being absent, wished to be represented at the hearing or has waived that right;
• The extent to which any representative would be able to receive instructions and present the case on the defendant’s behalf;
  .
• The extent of the disadvantage to the defendant in not being able to give evidence having regard to the nature of the case;
• The risk of the jury reaching an improper conclusion about the absence of the defendant;
  .
• The general public interest and, in particular, the interest of any victims or witnesses that a hearing should take place within a reasonable time of the events to which it relates;
• The effect of delay on the memories of witnesses;
  .
• Where allegations against more than one defendant are joined and not all of them have failed to attend, the prospects of a fair hearing for those who are present

Question 6

CC - what if D is absent for reasons beyond his control

Answer 6

the trial should not continue in their absence unless the defendant consents and the case can be fully presented without unfairness.