28.12.2024
SA9 Jury Trial Procedure
Proceeding in the Absence of the Defendant
The Principle: Presence at Trial
The accused is expected to be present throughout the trial.
Attendance is secured by remand (in custody or bail) when the case is sent to the Crown
Court.
Failure to attend after being bailed results in a bench warrant under Bail Act 1976, s.7.
Key Requirements:
Commencement of Trial:
The accused must be present to plead.
Presence includes physical attendance and understanding the proceedings
through an interpreter if needed (Kunnath v The State [1993]).
CrimPR 25.2(1)(b):
The court must not proceed if the accused is absent unless:
The accused has waived the right to attend, and
The trial will remain fair in the absence of the accused.
Counsel’s Presence:
The judge must not deal with trial-related matters in the absence of defence
counsel (e.g., Coolledge [1996]).
Exceptions to the Principle
The accused’s presence may be dispensed with in exceptional circumstances, including:
Misbehaviour of the accused.
Voluntary absence.
Illness of the accused.
Death of the accused.
Principles for Absence of the Accused
Hayward [2001] EWCA Crim 168:
Right to Presence and Representation:
The accused has the right to attend and be legally represented, but these rights
can be:
Waived wholly or partially through voluntary absence or disruption.
Discretion of the Judge:
The trial judge has discretion to proceed in the accused's absence.
The judge must:
Warn the defendant of this risk at the PTPH (CrimPR 3.21(2)).
Exercise discretion with great care, particularly if the accused is unrepresented.
Factors for Exercising Discretion:
Nature of the absence (voluntary or unavoidable).
Likelihood of securing attendance through adjournment.
The ability of defence counsel to represent the absent accused.
Risk of jury misinterpretation of absence.
Public interest in timely justice.
Fairness:
The trial must be fair to both prosecution and defence.
The judge must ensure the jury understands that absence is not an admission of
guilt.
Endorsement and Caution:
The House of Lords in Jones (Anthony William) [2002] commended these
principles, emphasizing:
The seriousness of the offence should not alter the principles.
Representation is desirable even in voluntary absence.
1
Max Lewis
, 28.12.2024
Specific Scenarios
Misbehaviour of the Accused:
If the accused’s conduct disrupts proceedings (e.g., shouting, intimidating witnesses),
the judge may:
Exclude the accused from court.
Warn the accused beforehand and allow a return if conduct improves.
Hold the accused in contempt of court as a deterrent.
Handcuffing is permitted only if there is a real risk of violence or escape (Horden
[2009]).
Voluntary Absence:
If the accused voluntarily absents themselves (e.g., escapes custody, fails to
surrender, or is incapacitated due to intoxication), the judge may:
Proceed with the trial in their absence (Jones (No. 2) [1972]).
Sentence the accused in absentia if convicted.
Factors considered:
Deliberateness of absence.
Efforts to secure attendance.
Fairness of proceeding without the accused.
Hamou [2019]: The court must confirm that the accused has waived their right to
attend, particularly if the indictment has been amended.
Illness of the Accused:
If the absence is due to involuntary reasons (e.g., illness), the court must generally:
Adjourn until the accused recovers, or
Discharge the jury if the trial cannot continue without the accused.
Exceptions:
If proceedings can be conducted without unfairness (e.g., through written evidence
or adequate representation).
If the illness is self-induced (e.g., intoxication), the trial may proceed.
Key Cases:
Howson [1981]: Trial may continue in a co-accused’s absence if it does not prejudice
their case.
Hamberger [2017]: Counsel's ability to represent the accused effectively may justify
proceeding.
F [2018]: The decision to proceed balanced trial delays, witness interests, and
representation adequacy.
Practical Considerations for Judges
Ensuring Fairness:
Safeguard the accused’s rights even in their absence.
Address weaknesses in the prosecution case.
Warnings to the Jury:
Clarify that absence does not imply guilt.
Alternative Steps:
Adjourn to secure attendance if feasible.
Issue arrest warrants under Bail Act 1976, s.7 for absent defendants.
Balancing Interests:
Weigh public interest, victim/witness concerns, and procedural delays against the
accused’s rights.
Conclusion
The accused’s presence at trial is fundamental but not absolute.
Judicial discretion allows trials to proceed in exceptional circumstances, balancing
fairness, public interest, and the accused’s rights.
Procedural safeguards ensure the trial remains just, even in the absence of the accused.
2
Max Lewis
SA9 Jury Trial Procedure
Proceeding in the Absence of the Defendant
The Principle: Presence at Trial
The accused is expected to be present throughout the trial.
Attendance is secured by remand (in custody or bail) when the case is sent to the Crown
Court.
Failure to attend after being bailed results in a bench warrant under Bail Act 1976, s.7.
Key Requirements:
Commencement of Trial:
The accused must be present to plead.
Presence includes physical attendance and understanding the proceedings
through an interpreter if needed (Kunnath v The State [1993]).
CrimPR 25.2(1)(b):
The court must not proceed if the accused is absent unless:
The accused has waived the right to attend, and
The trial will remain fair in the absence of the accused.
Counsel’s Presence:
The judge must not deal with trial-related matters in the absence of defence
counsel (e.g., Coolledge [1996]).
Exceptions to the Principle
The accused’s presence may be dispensed with in exceptional circumstances, including:
Misbehaviour of the accused.
Voluntary absence.
Illness of the accused.
Death of the accused.
Principles for Absence of the Accused
Hayward [2001] EWCA Crim 168:
Right to Presence and Representation:
The accused has the right to attend and be legally represented, but these rights
can be:
Waived wholly or partially through voluntary absence or disruption.
Discretion of the Judge:
The trial judge has discretion to proceed in the accused's absence.
The judge must:
Warn the defendant of this risk at the PTPH (CrimPR 3.21(2)).
Exercise discretion with great care, particularly if the accused is unrepresented.
Factors for Exercising Discretion:
Nature of the absence (voluntary or unavoidable).
Likelihood of securing attendance through adjournment.
The ability of defence counsel to represent the absent accused.
Risk of jury misinterpretation of absence.
Public interest in timely justice.
Fairness:
The trial must be fair to both prosecution and defence.
The judge must ensure the jury understands that absence is not an admission of
guilt.
Endorsement and Caution:
The House of Lords in Jones (Anthony William) [2002] commended these
principles, emphasizing:
The seriousness of the offence should not alter the principles.
Representation is desirable even in voluntary absence.
1
Max Lewis
, 28.12.2024
Specific Scenarios
Misbehaviour of the Accused:
If the accused’s conduct disrupts proceedings (e.g., shouting, intimidating witnesses),
the judge may:
Exclude the accused from court.
Warn the accused beforehand and allow a return if conduct improves.
Hold the accused in contempt of court as a deterrent.
Handcuffing is permitted only if there is a real risk of violence or escape (Horden
[2009]).
Voluntary Absence:
If the accused voluntarily absents themselves (e.g., escapes custody, fails to
surrender, or is incapacitated due to intoxication), the judge may:
Proceed with the trial in their absence (Jones (No. 2) [1972]).
Sentence the accused in absentia if convicted.
Factors considered:
Deliberateness of absence.
Efforts to secure attendance.
Fairness of proceeding without the accused.
Hamou [2019]: The court must confirm that the accused has waived their right to
attend, particularly if the indictment has been amended.
Illness of the Accused:
If the absence is due to involuntary reasons (e.g., illness), the court must generally:
Adjourn until the accused recovers, or
Discharge the jury if the trial cannot continue without the accused.
Exceptions:
If proceedings can be conducted without unfairness (e.g., through written evidence
or adequate representation).
If the illness is self-induced (e.g., intoxication), the trial may proceed.
Key Cases:
Howson [1981]: Trial may continue in a co-accused’s absence if it does not prejudice
their case.
Hamberger [2017]: Counsel's ability to represent the accused effectively may justify
proceeding.
F [2018]: The decision to proceed balanced trial delays, witness interests, and
representation adequacy.
Practical Considerations for Judges
Ensuring Fairness:
Safeguard the accused’s rights even in their absence.
Address weaknesses in the prosecution case.
Warnings to the Jury:
Clarify that absence does not imply guilt.
Alternative Steps:
Adjourn to secure attendance if feasible.
Issue arrest warrants under Bail Act 1976, s.7 for absent defendants.
Balancing Interests:
Weigh public interest, victim/witness concerns, and procedural delays against the
accused’s rights.
Conclusion
The accused’s presence at trial is fundamental but not absolute.
Judicial discretion allows trials to proceed in exceptional circumstances, balancing
fairness, public interest, and the accused’s rights.
Procedural safeguards ensure the trial remains just, even in the absence of the accused.
2
Max Lewis
