Jury trial procedure. Proceeding in the absence of the accused. Flashcards
Presence of the Accused at Trial
The Principle
As a general principle, an accused should be present throughout the trial. The attendance of the accused at the Crown Court is secured by the magistrates remanding in custody or on bail when the case is sent for trial. If, having been bailed, the accused fails to attend on the day notified as the day of trial, a bench warrant may be issued forthwith for the accused’s arrest.
The accused must be present at the commencement of a trial on indictment in order to plead.
It is then the almost invariable practice for the accused to be present throughout the trial. The implication of this rule is that the accused must not only be physically present, but must have the proceedings interpreted if that is necessary provides that the court must not proceed if the accused is absent, unless the court is satisfied that the accused has waived the right to attend and the trial will still be fair despite the accused’s absence.
By extension, this also means that the judge ought not to deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence. For example an appeal was allowed because the judge inquired of a witness in chambers and in the absence of defence counsel as to the reason why he had failed to attend court to give evidence. The Court of Appeal held that counsel should not have been excluded since the procedure went beyond a mere inquiry, and affected the conduct of the trial itself, which was therefore tainted.
Exceptions to the Principle
Notwithstanding this general rule, the accused’s presence may be dispensed with in exceptional circumstances.
The situations in which the court may be justified in proceeding without the accused are as follows.
(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.
Principles to be Considered
In Hayward the Court of Appeal considered the principles which the trial judge ought to apply when dealing with an absent defendant, and summarised them as follows.
(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
(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.
(1) the seriousness of the offence should not be considered — the principles would be the same whether the offence was serious or minor; and
(2) even if the accused absconded voluntarily, it would generally be desirable that the accused should be represented. It was emphasised that it was a step to be taken with ‘great caution and close regard to the overall fairness of the proceedings’. In Amrouchi relying on those observations, Hughes LJ said it was a step that should only be taken when it was ‘unavoidable’.
Misbehaviour of the Accused
If the accused behaves in an unruly fashion in the dock, e.g., by shouting out, or is apparently trying to intimidate jurors or witnesses, and thereby makes it impracticable for the hearing to continue, the judge may order that the accused be removed from court and that the trial proceed in the accused’s absence.
In practice, the judge would warn the accused before taking the extreme step of barring from court, and it may be appropriate to permit a return to the dock at a later stage if the accused undertakes not to repeat the unruly behaviour. Unruly behaviour may also be deterred by the threat of holding the accused to be guilty of a contempt in the face of the court An accused should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative to visible restraint.
Similarly, if the accused refuses to be brought into court from the cells, the trial judge is entitled to proceed without the accused where the right to be present has been unequivocally waived.
the discretion to continue in the absence of the accused is to be approached with great caution and with close regard to the fairness of the proceedings. It may often be better to allow time to cool off, and to continue the trial in the accused’s presence.
Voluntary Absence of the Accused
If the accused, having been present for the commencement of his trial, later goes voluntarily absent, either by escaping from custody or by failing to surrender having been bailed by the court for the period of an adjournment, the judge has a discretion to complete the trial in the accused’s absence.
Should the accused be convicted, sentence may also be passed in the accused’s absence it was held that the same principle applied where D had voluntarily rendered himself incapable of participation in the trial through intoxication (or through a self-induced drug psychosis).
Whether to proceed in the accused’s absence must, however, be a matter for the judge’s discretion. In Amrouchi the Court of Appeal identified questions relevant to the exercise of that discretion including whether (a) D had deliberately absented himself and (b) there were reasonable steps that could be taken to secure his attendance.
In Hamou the Court of Appeal restated that a trial can proceed in the absence of an accused who has not been arraigned, however, the court was first required to be satisfied that the accused had waived the right to be arraigned. If the indictment had been amended after the accused had absconded, it could not necessarily be assumed that the accused had waived the right to be arraigned on that amended indictment, although this also depended on a fact-specific analysis.
The alternative is to discharge the jury from giving a verdict, thus allowing a retrial to take place before a different jury once the accused’s presence has been secured. This exercise of discretion involved more than an assessment of the adequacy of the evidence to explain the accused’s absence, and required an assessment of fairness.
Whether or not the court proceeds in the accused’s absence, the judge may and almost certainly will issue a warrant for the accused’s arrest
Sickness of the Accused
If the accused’s absence from court is for reasons beyond the accused’s control, the trial may not continue in his or her absence unless the accused consents or if the case can be fully presented, including the accused’s own written evidence, without unfairness.
The obvious and common example of involuntary absence is sickness. Thus, should the accused become ill during the course of the trial, the judge must either adjourn the case until the accused recovers or discharge the jury.
If the court is not satisfied with the adequacy of the evidence of illness it should provide an opportunity for further evidence to be provided before continuing the trial in the acccused’s absence, and must always have regard to fairness
Possible exceptions to this proposition include:
(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.
(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).
The decision in Howson also indicates that it is not enough for an accused to be physically present if too unwell to pay proper attention to the proceedings and give instructions to legal representatives.
However the judge was found to have been correct to continue with the trial of an elderly hospitalised defendant by reference to factors such as the long delays in bringing the case to trial; the many adjournments which had already been granted; the interests of witnesses, including the complainant; and, crucially, whether the appellant’s counsel was fully instructed and able to represent his interests without him being present.
