Kahn and Another v Commissioner of Inland Revenue

A Crown Court has common-law power to begin, as well as continue, a trial in a defendant’s absence. The power is exceptional. It must be exercised with the utmost care, and only where the trial can remain as fair as circumstances permit and achieve a just outcome.

Relevant matters include the cause of absence, legal representation, prejudice to the defence, delay, the position of witnesses and victims, and wider practical justice. The seriousness of the offence is irrelevant. Representation is strongly desirable. Under article 6 of the European Convention on Human Rights, fairness is assessed across the proceedings as a whole, including effective appellate review; trial in absence is not intrinsically incompatible with the Convention.

Source identification: The supplied text is headed Regina v Jones, although the Key Information gives a different party name. This headnote follows the supplied judgment text.

The appellant was committed on bail for trial on a charge of conspiracy to rob. He knew the trial date but deliberately absconded. When he remained absent and his legal representatives had withdrawn, the Crown Court proceeded with the trial. He was convicted and sentenced to 13 years’ imprisonment.

After his arrest, the appellant appealed. The Court of Appeal (Criminal Division) dismissed his conviction appeal, holding that the trial had been fair and the conviction was safe: [2001] 3 WLR 125. It later emerged from the appellate history recorded in the speeches that his sentence was reduced to 11 years.

The central question before the House was whether the Crown Court could conduct a trial which commenced in the defendant’s absence. A related issue was whether the proceedings, including the appellate process, complied with article 6 of the European Convention on Human Rights.

1. Appeal dismissed unanimously. The certified question was answered affirmatively. Lord Bingham of Cornhill delivered the leading speech. Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger of Earlsferry each agreed that the Crown Court possessed the relevant power and that the appeal should be dismissed.

2. Per Lord Bingham, there was no principled distinction between continuing a trial after a defendant became absent and commencing a trial after a defendant knowingly absconded. The defendant’s deliberate breach of his obligation to attend could not automatically suspend proceedings until his surrender or apprehension. The decision in R v Jones, Planter and Pengelly [1991] Crim LR 856 was correct and was upheld.

3. The discretion must be exercised with the utmost care and caution. A trial should commence in the defendant’s absence only rarely. The judge’s overriding concern is whether the proceedings can be as fair as circumstances permit and lead to a just outcome. Relevant considerations include whether the absence is voluntary, the prejudice to the defence, the availability of representation, delay, the effect on witnesses and victims, and wider practical justice. The Court of Appeal’s checklist was valuable but non-exhaustive. Per Lord Bingham, supported by a majority, the seriousness of the alleged offence was not a relevant factor because fairness and a just outcome are equally important in every criminal case.

4. Per Lord Bingham, legal representation of an absent defendant is generally desirable and provides an important safeguard, although representation may be difficult without current instructions. The absence of representation in this case did not invalidate the trial. The judge and prosecuting counsel had taken appropriate steps to protect the defence, the possible defence theories were placed before the jury, and the jury received careful directions against drawing adverse conclusions from the defendants’ absence.

5. Lord Bingham, Lord Nolan and Lord Hutton regarded the Court of Appeal’s finding of waiver as permissible. Lord Hoffmann and Lord Rodger considered that Convention waiver required consciousness of the rights relinquished and that such knowledge had not been established. The common and decisive basis was broader: even without waiver, the question was whether the proceedings as a whole were fair.

6. Per Lord Rodger, with reasoning accepted on the decisive Convention issue by Lord Bingham and Lord Hoffmann, article 6 fairness required consideration of the trial and appellate proceedings together. The Court of Appeal had examined both safety and fairness, could receive fresh evidence and order a retrial, and heard the appellant with effective representation. Combined with the trial safeguards and the absence of any suggested exculpatory evidence, those appellate powers secured a fair hearing. There was therefore no infringement of article 6 of the European Convention on Human Rights.

1. House of Lords: Unanimously dismissed the appeal and answered affirmatively the question whether the Crown Court could commence a trial in the defendant’s absence: [2002] UKHL 5.

2. Court of Appeal (Criminal Division): Dismissed the conviction appeal, holding that the conviction was safe and the trial fair. The speeches also record that the sentence was reduced from 13 to 11 years: [2001] 3 WLR 125.

3. Crown Court at Liverpool: Tried the appellant in his deliberate absence, convicted him of conspiracy to rob and imposed 13 years’ imprisonment.