O'Hare, R v

A trial may proceed in an absent defendant’s absence only where the court exercises its discretion with great care and secures a trial that is as fair as the circumstances permit. The relevant considerations include whether the absence was voluntary, the prospects and effects of an adjournment, representation, the prejudice caused by absence, and the need for a joint trial.

The seriousness of the charge is not an independent consideration. A defendant who deliberately absconds with knowledge of, or indifference to, the likely consequences may waive attendance and representation. Fairness under Article 6 is assessed by considering the proceedings as a whole, including an effective appeal.

The respondent was tried at Lewes Crown Court for a knife-point robbery after failing to attend his trial while on bail. The trial judge found that he had voluntarily absented himself and ordered a joint trial with his co-defendant to proceed. His legal representatives withdrew because they lacked instructions. He was convicted in his absence and sentenced to six years’ detention in a young offenders institution.

After his arrest on return from Ireland, he appealed against conviction and sentence. He contended that his absence was caused by threats, that the trial should not have proceeded without him, that the jury were wrongly invited to compare his photograph with the assailant’s description, and that his sentence was excessive.

1. Conviction appeal dismissed. The Court rejected the appellant’s account that threats had caused his absence. It found that he had deliberately absconded because he feared conviction and a substantial sentence.

2. The Crown Court had correctly exercised its discretion to proceed. Applying the principles in R v Hayward, Jones and Purvis [2001] EWCA Crim 168 and R v Jones [2002] UKHL 5, the judge was entitled to find voluntary absence and to regard a joint trial as necessary. Separate trials would have given the appellant an unjustified advantage, since his proposed defence implicated his co-defendant.

3. The seriousness of the robbery did not affect the discretion. The overriding question was whether the trial could be fair and lead to a just outcome. That question is equally important for serious and less serious charges.

4. The appellant waived his rights to attend and be represented. Although a clear warning on bail would ordinarily provide compelling proof of waiver, the appellant’s failure to contact his solicitors after going to Ireland showed that he appreciated both that the trial was likely to proceed and that he would be unrepresented.

5. The withdrawal of the appellant’s solicitor and counsel attracted no criticism under the applicable professional rules. Nevertheless, representation by lawyers holding earlier instructions is a valuable safeguard in an absent-defendant trial. The Court urged reconsideration of professional rules and continued funding for such representation.

6. There was no Article 6 unfairness when the proceedings were viewed as a whole. The trial judge gave careful directions that absence was not evidence of guilt. The appellant had a full opportunity on appeal to explain his absence and advance the matters which he said would have been put at trial. The photograph direction was also proper, as it invited the jury to consider whether the description excluded him and drew attention to the failed identification.

7. Sentence appeal allowed. After obtaining a probation report and considering the appellant’s youth and previous good character, the Court held that six years was excessive. It quashed that sentence and substituted five years’ imprisonment.

• Court of Appeal (Criminal Division): In [2006] EWCA Crim 471, the Court dismissed the appeal against conviction but allowed the appeal against sentence, substituting five years’ imprisonment.

• Crown Court at Lewes: The appellant was tried and convicted of robbery in his absence on 25 August 2004. He received six years’ detention in a young offenders institution.