Trials in absence

The law identifying the circumstances in which a court may try defendants in their absence is established by the House of Lords in R v Jones [2002] UKHL 5. It held that if a client knew of the trial date and chose not to appear, then they had waived their right to be present during the proceedings.


That approach was approved in the European Court of Human Rights in Sejdovic v Italy 42 EHRR 360, and has more recently been approved by the Court of Appeal in R v O'Hare [2006] EWCA Crim 471. The court accepted that not only was there a waiver of the right to be present, but also a waiver of the right to legal representation (paragraph 35).


In both Jones and O'Hare, the courts have considered the position of the defence lawyer whose client does not appear. Although it is clear that the courts would wish otherwise, it has been accepted that this is entirely a professional decision for the individual lawyer. If they consider themselves fully instructed so that they may conduct a trial, whatever route it may follow, they are perfectly entitled to remain and any representation order granted will provide finance for them.


On the other hand, if, with the reintroduction of means tests, no funds have been made available, they are plainly at liberty to withdraw. However, solicitors may also withdraw if they do not feel that they can adequately represent their client or have sufficient authority or instructions to do so. In O'Hare, the solicitors had taken advice from the Law Society and no criticism was made of their decision.


The relevant professional rules are rule 12.08 'Care and skill' ('a solicitor must act within his client's express or implied authority') and rule 12.12 'Termination of retainer'. Rule 12.12.2 makes clear that a solicitor cannot continue to act where they are unable to obtain clear instructions from a client.


In O'Hare, the solicitors had an unsigned proof taken immediately prior to a bail application and a defence case statement signed by the client but had not had an opportunity to take instructions on the prosecution witness statements, the exhibits or further disclosure or additional evidence. The court accepted the right of the solicitor to withdraw, notwithstanding that the court would have regarded the presence of a lawyer as an important additional safeguard for the client (paragraphs 32-34).




Procedure


The first amendments to the Criminal Procedure Rules 2005 came into force on 3 April 2006. Specific provisions have now been added to deal with preparatory hearings in those cases of jury tampering where there may be a Crown Court trial by judge alone.


Part 18 provides for new rules in relation to warrants. However, the most significant amendments relate to hearsay and character notices. It should be noted that a new set of forms in relation to hearsay applications came into force at the same time (visit: www.dca.gov.uk/criminal/procrules_fin/index.htm and follow the link to forms).


Hearsay notices are now only required in relation to statutory hearsay and no longer for hearsay based on common law rules, such as res gestae or the joint enterprise rule.


Notices will be required when either party wishes to rely on hearsay by reason of section 114(1)d of the Criminal Justice Act 2003 (the interests of justice), section 116 (unavailable witnesses), section 117 (business documents) and section 121 (multiple hearsay).


It is necessary to identify which of the statutory provisions is relied upon. Solicitors will wish to ensure that the Crown has relied upon the correct provision. Solicitors introducing hearsay evidence should add section 114(1)d whenever possible as a fall-back position. The basis for the introduction of hearsay under the interests of justice test is based on factors listed in section 114(2). The factors are:


(a) How much probative value the statement has (assuming it to be true) in relation to an issue in the proceedings, or how valuable it is for the understanding of other evidence;


(b) What other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);


(c) How important the matter or evidence in paragraph (a) is in the context of the case as a whole;


(d) The circumstances in which the statement was made;


(e) How reliable the maker of the statement appears to be;


(f) How reliable the evidence of the making of the statement appears to be;


(g) Whether oral evidence of the matter stated can be given and, if not, why not;


(h) The amount of difficulty involved in challenging the statement; and


(i) The extent to which that difficulty would be likely to prejudice the party facing it.


In deciding whether to admit hearsay under these provisions, a judge must have regard to all the factors in section 114, but need not reach a conclusion on each of them (see R v Taylor (2006) The Times, 7 February).


Two amendments are made to rule 35, dealing with notices about bad character. When either party wishes to introduce material about the bad character of a witness who is not the defendant, notice must now be given within 14 days of initial disclosure or the later provision of the relevant information.


It should be noted that, under Crown Prosecution Service (CPS) guidance, the previous convictions of prosecution witnesses should be served with initial disclosure. This is virtually unknown in practice. However, if the Crown continues with the practice of serving details on the day of trial, the defence will be able to argue that it is entitled to have 14 days to consider how best to present its case and regrettable delay will be caused.


The CPS Disclosure Manual provides: 'All previous convictions of prosecution witnesses must be disclosed to the defence at the initial disclosure stage, save for minor road traffic matters. This is regardless of their age or whether they are spent; therefore, there must be automatic disclosure of previous convictions and, in our view, criminal cautions of prosecution witnesses irrespective of any test of materiality.'


This does not mean that that information will go before the court. The defence will be able to make a fully informed decision whether to make an application under section 100 of the Criminal Justice Act 2003 to introduce the evidence of bad character.


The second amendment to rule 35 provides that if the Crown serves notice that it intends to introduce the defendant's bad character, a counter-notice objecting to such a course must be served by the defence within 14 days of receipt of the notice (and not the earlier very limited seven-day period).





Disclosure



In DPP v Wood and DPP v McGillicuddy [2006] EWHC 32 (Admin), the court made three important findings of law in relation to disclosure issues.


The time for the service of a defence case statement runs from service of the notice of initial disclosure, even if it is a defective notice and even if it in particular does not have attached to it the critical schedule of unused material. In these circumstances, it will be essential that solicitors seek an immediate extension of time until at least 14 days after the schedule is received.


A defence case statement served late is still a defence statement 'given', so that if there is a continuing dispute about further disclosure, the defence can make an application to the court for an order under section 8 of the Criminal Procedure and Investigations Act 1996 (CPIA).


In these intoximeter cases, the court went on to consider whether the company maintaining the machinery at the police stations was part of the prosecution team, thus causing their maintenance records to be prosecution material. It held they were a third party, so that disclosure could only be obtained under the third-party disclosure rules. On the particular facts, insufficient issues had been raised beyond a mere assertion that a machine had been altered to such an extent that it was no longer an approved machine.


The issue of disclosure of unused material in the Crown Court has received detailed consideration in a protocol that has now been issued (see www.hmcourts-service.gov.uk/ cms/files/disclosure_protocol.pdf).


Solicitors are at risk as to wasted costs if they do not give full consideration to its terms in the preparation and handling of their casework. However, wasted costs orders cannot be used to change the duties owed to a client by a solicitor - only to enforce the way those duties are carried out. The protocol appears to have been written without a contribution from the defence and can be criticised for failing to take fully into account the duties owed by a solicitor to the client in an adversarial system.


The time limits for service of defence case statements are likely to be strictly enforced and the time limit of only 14 days from initial disclosure is not a limit easy to meet in cases where the bulk of the prosecution evidence only became available at the same time as initial disclosure, or where critical evidence is omitted.


Solicitors will need to consider carefully with their clients how much detail they wish to insert into a defence case statement. Under CPIA (as amended), the defence statement will set out the nature of the defence and the particular defences relied upon. It must identify the matters of fact on which the accused takes issue with the prosecution and the reason why in relation to each disputed matter of fact. It must identify any point of law (including points as to the admissibility of evidence or the abuse of process) which the accused proposes to take and identify authorities relied on in relation to each point of law.


For an alibi defence, the particulars relied upon need to be given. The protocol states that judges will expect to see defence case statements that contain a clear and detailed exposition of the issues of fact and law in the case.


However, there is only a very limited sanction against clients who instruct solicitors to restrict the amount of information disclosed. The worst that can occur is that the jury may be invited to draw an inference under section 11 of CPIA as to the reason for the lack of detail. On the other hand, if too much detail is pleaded, and the defendant gives evidence that it is not exactly in coincidence with it, the Crown is given new lines of cross-examination that would not otherwise have been available - to the disadvantage of the client.


An early decision must be made whether this is a case in which further disclosure will advance the defence case. If it is a case turning on its facts, where little will be gained by further disclosure, the defence will wish to consider limiting the amount of detail provided.


The position is quite different where there may be a need for further disclosure. In those circumstances, the defence statement will need to be a detailed document identifying every issue that may arise and the reasons for it. As the protocol and case law make clear, it is not possible to make an application to the court under section 8 for further disclosure, based on grounds that are not fully set out in the defence statement.


The protocol also addresses the issue of third-party disclosure. It properly points out that where the material is not in the hands of the investigator, the normal route by which third-party material will be obtained is by way of witness summons under section 97 of the Magistrates' Court Act 1980 or section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965. However, in order to succeed in such applications, the defence has to show, at the time of the application, why the material it seeks is material. This may often prove problematic as the exact nature of the evidence may not at that stage be known.


However, there is an alternative route available to the defence which is not discussed in any detail in the protocol. Under paragraph 3.5 of the code of practice issued under CPIA, the investigator should pursue all reasonable lines of enquiry, whether this points towards or away from the suspect. Under paragraph 3.6, while the officer investigating is not required to make speculative enquiries of third parties, and there must be some reason to believe that they may have relevant material, that reason may come from information provided to the police by the accused (see R v Alibhai & Others [2004] EWCA Crim 681).


Once an officer has looked at any of the third-party material, whether or not the official considers it relevant, it must be entered on the unused material schedule and it becomes prosecution material. The test for requiring an officer to examine such material is the possibility that it may be relevant.


By Anthony Edwards, TV Edwards, London