Where a defendant fails to appear for trial and the judge is sure that he has deliberately absented himself, it is necessary to proceed in the defendant’s absence (R v Anthony Jones [2003] 1 AC1).

However, in R v Amrouchi [2001] EWCA Crim 3019 the court indicated that caution was needed, especially where the defendant’s evidence could significantly strengthen the defence case. It would appear that this will remain the law, notwithstanding the statutory presumption introduced by section 54 of the Criminal Justice and Immigration Act 2008 which, from 14 July, provided that a case shall proceed in absence. Enquiries should always be made to ensure the defendant is fully aware of the consequences of his actions. In this case, the defendant was in custody at the time the trial was listed.

Similar considerations apply where a magistrates’ court is asked under section 142 of the Magistrates Courts Act 1980 to reopen a case. That the defendant was at fault for not being at the original hearing is not decisive of the issue; the matter is one that is considered in the interests of justice. It will normally be in such interests to allow a rehearing, particularly where the defendant was in custody at the original trial date: R v (Morsby) v Tower Bridge Magistrates’ Court [2007] EWHC 2766 (admin). Relevant considerations include: whether the defendant’s behaviour was deliberate and voluntary and, as such, plainly waived his right to appear; the seriousness of the offence; the interests of the public, victims and witnesses that there be a prompt trial; the effect of delay on the memory of witnesses; and the disadvantage to a defendant in not being able to give evidence. The discretion to commence a trial in absence should be exercised with care and caution.

Youth crimeIn R v T [2008] EWCA Cri 815, after full consideration of the issues, the court held that the concept of doli incapax has indeed been abolished. T was prosecuted for causing or inciting a child under 13 to engage in sexual activity. The issue was whether the child’s behaviour was criminal – he was 12 – and whether it had to be proved that he knew his acts were wrong. It was held that such knowledge did not have to be proved.

In R (D) v Sheffield YC [2008] EWHC 601 (Admin) it was confirmed that section 142 of the Magistrates Court Act 1980 could not be used to vacate an unequivocal guilty plea and thus issues of jurisdiction in the youth court could not be reopened by that device.

Transfer of representationThe courts are aware that some defendants are using a late transfer of their representation in an attempt to delay the hearing of their cases.

The issues that arise were therefore considered with care in R v Ulcay and Toygun [2007] EWCA Crim 2379.

The court considered the professional duties of the lawyers involved. Where a client has significantly changed their instructions, it is a matter for the lawyers alone to decide whether they can professionally continue to act. The court will accept their decision on that aspect. It is proper to withdraw where the change in instructions is dramatic and there is a public assertion by the defendant that the lawyers should not continue to act.

However, it does not automatically follow that a new lawyer will be appointed, and even if a transfer is permitted, a judge is entitled in the context of a multi-handed trial to grant only a short adjournment. The court held that this was not a sufficient ground for lawyers then to withdraw from the case. The court was aware of the professional duty not to take on a matter which could not be handled appropriately but considered that, where it was the court itself which created that problem, the normal professional rule did not apply.

Essentially, defendants should not be allowed to abuse the trial process. This decision does not affect the professional position of a lawyer whose client does not appear for trial, when it is again a decision for the solicitor alone whether to remain (Re Bhoodoo (wasted costs order) [2007], The Times, 5 February).

HearsayUnder section 114 of the Criminal Justice Act 2003, hearsay evidence can be admitted in four different ways:The rules apply both to prosecution and defence.

  • Under statutory provisions (the primary statutory provisions under which hearsay is admitted are sections 116 (unavailable witnesses) and 117 (business documents));
  • Under continuing common law rules (section 118 CJA 2003);
  • Where all the parties are agreed;
  • Where the court is satisfied that it is in the interests of justice.

Applications under section 114(1)(d) are now becoming common. When considering such an application, the court must have regard to the conditions set out in section 114(2).

This constantly expanding use of the provision is a matter which requires defence practitioners to carefully examine the decisions that they make at all stages of a case. In R v Adams [2007] EWCA Crim 3025 the Crown sought to admit evidence under section 116(2)(d) on the basis that the relevant witness could not be found, although such steps as were reasonably practical had been taken to find him. The court was wholly unpersuaded by their arguments, where they had only made contact with the witness by voicemail on the day before the trial and on the day of trial itself. However, the prosecution recovered the position under section 114 1(d). Worryingly, this evidence was allowed, in the interests of justice, because at a preliminary hearing the defence had indicated that possession of drugs was not an issue in the case but that the issue was one of the intent to supply. The Crown would have been unable to prove possession without the admission of this hearsay evidence. The evidence was therefore admitted to shut out what was described as a tactical escape route, albeit this must discourage defence lawyers from making admissions during preliminary hearings.

A defence statement should be limited to an identification of issues of dispute while putting the Crown to proof of all other matters.

In Sak v Crown Prosecution Service [2007] EWHC 2886 (admin) a doctor was unable to attend to give evidence in connection with an allegation of being drunk in charge of a motor vehicle. The evidence was therefore of some importance. Arguments by the Crown as to the unavailability of the witness under section 116 did not succeed, but the evidence was again admitted under section 114(1)(d). It was accepted that the sudden unavailability of the doctor arose through no fault of the Crown.

The court emphasised that, in deciding whether to oppose a prosecution application to adjourn, the defence needed to consider how a court would handle an application under these provisions. In R v McLean [2007] EWCA Crim 219 the court emphasised that, once hearsay was admitted under section 114(1)(d), it was admitted for all purposes against all defendants. However, in R v Y [2008] EWCA Crim 10 important restrictions were placed on the use of these provisions.

While section 114(1)(d) could apply to a confession by an absent co-defendant, as it could to any other evidence, the court emphasised that hearsay is not automatically admissible and that it would not normally be in the interests of justice for a police interview of a co-suspect to be admitted. It will, the court confirmed, also be an unusual case where a hearsay accusation is admitted, particularly if there is no other evidence. This is of great significance in connection with allegations of domestic violence, where the complainant does not wish to pursue the matter.

Anthony Edwards, TV Edwards, London