Criminal trials in the absence of a defendant

On 22 January 2004 the Lord Chief Justice [LCJ] issued a Practice Direction on Bail, which amends the Consolidated Criminal Practice Direction 2002 by inserting a new Part 1 chapter 13. Rene Barclay from the CPS discusses its implications.

At 13.2 the LCJ referred to the disruption to proceedings caused by defendants who fail to attend their trial and the impact on victims, witnesses, other court users and costs.

He also stated that“A defendant’s failure to surrender affects not only the case with which he is concerned, but also the courts’ ability to administer justice more generally by damaging the confidence of victims, witnesses and the public in the effectiveness of the court system and the judiciary. It is therefore most important that defendants who are granted bail appreciate the significance of the obligation to surrender to custody in accordance with the terms of their bail and that courts take appropriate action if they fail to do so”

At 13.4 the LCJ re iterated the 3 main courses of action open for the court to consider taking ; imposing penalties for the failure to attend, revoking bail or imposing more stringent bail conditions and conducting trials in the absence of the defendant.

This article seeks to outline the circumstances in which a defendant can be tried in his absence, identify those factors which should be taken into account when deciding whether to apply to a court to have the defendant tried in his absence and rehearses the remedies open to a defendant convicted in his absence.

Summary Trial of Adult defendants

Statutory provisions

The governing provision enabling a magistrates court to try an absent defendant is section 11 Magistrates Court Act [MCA] 1980.

Section 11 (1) provides that, subject to the notification requirement in subsection (2), a trial in the magistrates court may proceed in the absence of the defendant. The section therefore confers on the court a discretion.

Section 122 (2) MCA extends the ambit of the power contained in section 11 section by providing that a party to any proceedings before a magistrates’ court, if absent, shall be deemed to be present if legally presented.

Section 122 (3) MCA only prevents this deeming provision from applying where the law expressly requires a defendant to be present.

It could be argued that trials should always proceed when an absent defendant is represented because in law the defendant is deemed to be present.

Nevertheless Section 122 has not been interpreted in this way and the case law has set out a number of principles which must be applied before a court may exercise its discretion to try a defendant, whether legally represented or not in his absence.

Case law

The exercise of the discretion has been considered most recently by the Divisional Court in R on the application of Whitehead v Horseferrry Road Magistrates’ Court (2001 EWHC Admin 492). It was accepted in this case that the principles to be applied are those set out by the Court of Appeal, following a review of the domestic and European authorities, in R v Hayward, Jones and Purvis (2001 2Cr.AppR. page 156) a jury trial case.

These principles, as approved and modified by the House of Lords judgement (2002 UKHL5), are as follows:

1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2. Those rights can be waived, separately altogether, wholly or in part, by the defendant himself.

3. They may be wholly waived if, knowing, or having the means of knowledge as to when and where his trial is to take place; he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him.

4. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

5. The (trial judge) has discretion as to whether a trial should take place or continue in the absence