JURY TRIAL PROCEDURE
a. Proceeding in the absence of the defendant
Presence of the Accused at trial
The accused must be present at the commencement of a trial on indictment in order to plead.
Then, generally accused should be present throughout his trial. Attendance is secured by the
mags remanding him in custody or on bail when they send his case for trial. If, having been
bailed, he fails to attend on the day notified to him as the day of trial, a bench warrant may
be issued forthwith for his arrest under s7 BA 1976.
The court must not proceed if the accused is absent, unless satisfied that he has waived the
right to attend and the trial will be fair despite his absence (25.2(1)(b)). Also, judge ought
not to deal with matters which constitute part of trial proceedings in absence of D counsel
e.g. where J inquired of W as to why they failed to attend- tainted conduct of trial.
EXCEPTIONS WHERE ACCUSED’S PRESENCE MAY BE DISPENSED WITH:
(a) As a result of misbehaviour of the accused;
(b) Where his absence is voluntary;
(c) When the accused is too ill to attend;
(d) Following accused’s death.
Principles to be Considered when dealing with an absent D (Hayward [2001])
(a) Accused rights to be at trial and be legally represented can be waived by the accused:
(i) 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;
(ii) 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 his instructions from those
representing him.
(b) TJ has a discretion as to whether a trial should take place/continue in the accused
absence and/or his legal representatives. TJ required to warn D at the PTPH of the risk
of the trial continuing in his absence. Discretion must be exercised with great care and
it is only in exceptional cases it should be exercised in favour of a trial taking
place/continuing, particularly if the accused is unrepresented.
(c) In exercising that discretion, fairness to the defence is of prime importance but fairness
to P must also be taken into account. TJ must have regard to all the circumstances of
the case including:
i) the nature and circumstances of the accused's behaviour in absenting himself from
the trial or disrupting its continuation, and whether his behaviour was deliberate,
voluntary and such as plainly waived his 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 his right to representation;
v) the extent to which the absent accused's legal representatives are able to present his
defence;
vi) the extent of the disadvantage to the accused in not being able to give his account of
events, having regard to the nature of the evidence against him;
vii) the risk of the jury reaching an improper conclusion about the absence of the accused
(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 D’s who are present.
(d) If TJ decides that a trial should take place/continue in the absence of an unrepresented
accused, he must ensure that the trial is as fair as the circumstances permit and take
reasonable steps, during the giving of evidence and in the summing-up, to expose
weaknesses in the P case and to make such points on behalf of the accused as the
evidence permits. In summing-up he must warn the jury that absence is not an
admission of guilt and adds nothing to the P case.
Jones [2002] → two reservations:
(1) The seriousness of the offence should not be considered;
(2) Even if the accused absconded voluntarily, it is generally desirable that he should be
represented.
Lopez [2013] ➔ Where the accused's defence involved the retraction of admissions made to
the police in interview, his presence at his trial was of importance.
Misbehaviour of the Accused
If the accused behaves in an unruly fashion in the dock, e.g. shouting out, or trying to
intimidate jurors or W and so he makes it impracticable for the hearing to continue in his
presence, TJ may order that he be removed from court and that the trial proceed without
him. TJ should warn the accused before barring him from court, and it may be appropriate to
allow him to return at a later stage if he undertakes not to repeat his behaviour. Unruly
behaviour may also be deterred by the threat of holding the accused to be guilty of a
contempt. 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. If the accused refuses to be
brought into court from the cells, the TJ is entitled to proceed without him where he has
unequivocally waived his right to be present. 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.
a. Proceeding in the absence of the defendant
Presence of the Accused at trial
The accused must be present at the commencement of a trial on indictment in order to plead.
Then, generally accused should be present throughout his trial. Attendance is secured by the
mags remanding him in custody or on bail when they send his case for trial. If, having been
bailed, he fails to attend on the day notified to him as the day of trial, a bench warrant may
be issued forthwith for his arrest under s7 BA 1976.
The court must not proceed if the accused is absent, unless satisfied that he has waived the
right to attend and the trial will be fair despite his absence (25.2(1)(b)). Also, judge ought
not to deal with matters which constitute part of trial proceedings in absence of D counsel
e.g. where J inquired of W as to why they failed to attend- tainted conduct of trial.
EXCEPTIONS WHERE ACCUSED’S PRESENCE MAY BE DISPENSED WITH:
(a) As a result of misbehaviour of the accused;
(b) Where his absence is voluntary;
(c) When the accused is too ill to attend;
(d) Following accused’s death.
Principles to be Considered when dealing with an absent D (Hayward [2001])
(a) Accused rights to be at trial and be legally represented can be waived by the accused:
(i) 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;
(ii) 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 his instructions from those
representing him.
(b) TJ has a discretion as to whether a trial should take place/continue in the accused
absence and/or his legal representatives. TJ required to warn D at the PTPH of the risk
of the trial continuing in his absence. Discretion must be exercised with great care and
it is only in exceptional cases it should be exercised in favour of a trial taking
place/continuing, particularly if the accused is unrepresented.
(c) In exercising that discretion, fairness to the defence is of prime importance but fairness
to P must also be taken into account. TJ must have regard to all the circumstances of
the case including:
i) the nature and circumstances of the accused's behaviour in absenting himself from
the trial or disrupting its continuation, and whether his behaviour was deliberate,
voluntary and such as plainly waived his 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 his right to representation;
v) the extent to which the absent accused's legal representatives are able to present his
defence;
vi) the extent of the disadvantage to the accused in not being able to give his account of
events, having regard to the nature of the evidence against him;
vii) the risk of the jury reaching an improper conclusion about the absence of the accused
(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 D’s who are present.
(d) If TJ decides that a trial should take place/continue in the absence of an unrepresented
accused, he must ensure that the trial is as fair as the circumstances permit and take
reasonable steps, during the giving of evidence and in the summing-up, to expose
weaknesses in the P case and to make such points on behalf of the accused as the
evidence permits. In summing-up he must warn the jury that absence is not an
admission of guilt and adds nothing to the P case.
Jones [2002] → two reservations:
(1) The seriousness of the offence should not be considered;
(2) Even if the accused absconded voluntarily, it is generally desirable that he should be
represented.
Lopez [2013] ➔ Where the accused's defence involved the retraction of admissions made to
the police in interview, his presence at his trial was of importance.
Misbehaviour of the Accused
If the accused behaves in an unruly fashion in the dock, e.g. shouting out, or trying to
intimidate jurors or W and so he makes it impracticable for the hearing to continue in his
presence, TJ may order that he be removed from court and that the trial proceed without
him. TJ should warn the accused before barring him from court, and it may be appropriate to
allow him to return at a later stage if he undertakes not to repeat his behaviour. Unruly
behaviour may also be deterred by the threat of holding the accused to be guilty of a
contempt. 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. If the accused refuses to be
brought into court from the cells, the TJ is entitled to proceed without him where he has
unequivocally waived his right to be present. 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.
