Summary trial procedure. Proceeding in the absence of the defendant Flashcards
Trial in Absence of the Accused
If the accused fails to appear for the trial in the magistrates’ court, the case may (if the accused is under 18) or must (if the accused has attained the age of 18 and it does not appear to the court to be contrary to the interests of justice to do so) proceed in the accused’s absence.
However, where the prosecution commenced by issue of a summons or requisition, it must be proved to the satisfaction of the court that either the summons (or requisition, as the case may be) was served a reasonable time before the hearing or the accused appeared on a previous occasion to answer the charge
Failure of Parties or Witnesses to Appear
Power to Adjourn
If the one or both of the parties is absent, or witnesses fail to attend, the court must consider what action to take. If the trial does not proceed on the appointed day, the court may adjourn the case.
Under s. 10(2), the court may either set the date for the hearing to resume when it adjourns the case or, unless it also remands the accused (in which case a date must be fixed), leave the time and place to be determined.
The trial can resume only where the court is satisfied that the parties have had adequate notice; if the accused was not present when the case was adjourned, it will therefore be necessary to send the accused an adjournment notice.
Trial in the Absence of the Accused: Powers and Procedure
if, at the time and place appointed for the trial, the prosecutor appears but the accused does not, and the accused has attained the age of 18, the court must proceed in the absence of the accused ‘unless it appears to the court to be contrary to the interests of justice to do so’.
Thus, where an adult accused is absent, assuming he or she is aged 18 or over, the general rule is that the court will proceed as if the accused were present and, unless a plea was entered on an earlier occasion, had pleaded not guilty; the court must give reasons if it does not do so.
However, where proceedings were commenced by summons or by written charge and requisition then (unless the accused has appeared on a previous occasion in answer to the summons or requisition) it must be proved to the satisfaction of the court that the summons (or requisition) was served on the accused a reasonable time before the hearing.
Where the case has previously been adjourned it is necessary to satisfy the court that the accused has had ‘adequate notice’ of the adjournment date or, ‘reasonable notice’ of when and where the hearing would resume.
If the accused does not appear and the conditions for proceeding in his or her absence are satisfied, a not guilty plea is entered on behalf of the accused
The burden is then on the prosecution to prove the case to the normal criminal standard, whether by calling oral evidence or by reading statements served on the accused (such statements are admissible in the absence of objection from the defence — positive consent is not required:).
Should the prosecution evidence turn out to be insufficient, the court is of course obliged to acquit the accused. Assuming, however, that the case is proved, the court may either proceed immediately to sentence or, in certain circumstances, it may adjourn to give the accused notice to attend for sentencing.
Where a written charge is to be tried using the single justice procedure s. 11 does not apply (Trial in the Absence of the Accused)
Determining Whether to Proceed to Trial in Accused’s Absence
‘the court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear’; however, s. 11(6) provides that the court is not required to inquire into the reasons for the accused’s failure to appear before deciding whether to proceed in his or her absence. Section 11(7) requires the court to state in open court its reasons for not proceeding in the absence of an accused who has attained the age of18 and who fails to attend.
proceeding in the absence of an accused who fails to attend is ‘the default position’ where the accused ‘is aware of the date of trial and no acceptable reason is offered for that absence’, adding that the court ‘is not obliged to investigate if no reason is offered’.
The court should take into account any reasons for absence that are put forward;
the ‘reliability of the information supplied in support of those reasons’;
the date when the reasons for absence became known to the accused and what the accused did thereafter;
that trial in absence can and sometimes does result in acquittal;
that an accused who is convicted can ask that the conviction be reopened in the interests of justice, for example if absence was involuntary;
and that an accused who is convicted has a right to a rehearing on appeal to the Crown Court.
An example of involuntary absence may be found in R (Davies) v Solihull Justices After his case had been called on, it was discovered that D had been excluded from the court building by the security staff because of disorderly behaviour. The justices ruled that D had, by virtue of his conduct, voluntarily absented himself from the hearing of his case, and that he should be tried in his absence. Underhill J ruled that D’s misbehaviour did not justify excluding him from his own trial. Moreover, the justices erred in treating him as being voluntarily absent, since he had wanted to be in court but was prevented by the exclusion. While it could be said that the exclusion was his own fault, that was not the same as it being his own choice; the position was no different than if he had committed an offence on the way to court and then been arrested (and so unable to attend court).
in R (R) v Thames Youth Court the district judge had formed the view that D had brought his arrest on himself and should therefore be regarded as having excluded himself deliberately from court. Pitchford J said (at [27]) that the district judge was wrong to take that approach.
Warrant for Arrest
where the court, instead of proceeding in the absence of the accused, adjourns or further adjourns the trial, it has the option of issuing an arrest warrant, provided that the offence in question is punishable with imprisonment, or the court, having convicted the accused, proposes to impose a disqualification.
For this provision to apply, it must be proved to the satisfaction of the court that the summons or requisition was served on the accused within a reasonable time before the trial unless the current adjournment is a second or subsequent adjournment of the trial, the accused was present on the last occasion when the trial was adjourned and the date for the present hearing was fixed then.
If the accused appears to be evading service of the summons or requisition, and the offence is an indictable one, it is open to the prosecution to start proceedings again by seeking an arrest warrant.
‘Where the offence charged is an indictable offence, a warrant under this section may be issued at any time notwithstanding that a summons has, or a written charge and requisition have, previously been issued.’
If the accused is currently on bail and fails to attend court, an arrest warrant may, in any event, be issued
