Kepple, R. v

A defendant who deliberately absents himself, knowing that the trial will proceed and that an additional count is to be added, may waive the right to be arraigned on that count. Waiver is assessed by the same principles that govern trial in the defendant’s absence.

Where counsel continues to represent an absent defendant, counsel may cross-examine prosecution witnesses in detailed terms based on prior instructions. Counsel must not present those instructions as the defendant’s evidence or state what the defendant would say. A ruling that prevents proper cross-examination may remove an essential safeguard of a fair trial and render a conviction unsafe under Article 6.

The appellant was charged under Offences Against the Person Act 1861 following a fight in a public house. On the morning fixed for trial, the prosecution gave notice of an application to add a count under section 18. The appellant then absconded.

The Crown Court tried him in his absence, added the section 18 count, and convicted him. His counsel remained instructed but the trial judge restricted cross-examination based on the appellant’s prior instructions. The appellant received 54 months’ imprisonment for the section 18 offence, with a consecutive three-month sentence for breach of bail.

On appeal, the central issues were whether the absence of arraignment invalidated the trial and whether the restriction on cross-examination deprived the appellant of a fair trial.

1. Appeal allowed and retrial ordered. The conviction for wounding with intent was unsafe because the ruling on cross-examination materially curtailed the appellant’s ability, through counsel, to challenge the prosecution case.

2. The absence of an arraignment on the newly added section 18 count did not itself invalidate the trial. Arraignment is a basic feature of a jury trial, but a plea of not guilty may be waived. The question was whether waiver was established by the same principles governing a trial in the defendant’s absence.

   The appellant knew that the trial would proceed if he failed to attend and knew that the prosecution intended to add the section 18 count. There was no innocent explanation for his absence. Any lost opportunity to reconsider his plea to the original section 20 count flowed from his own deliberate absence. The trial judge had therefore been entitled to proceed in his absence.

3. However, counsel who remains instructed for an absent defendant must be able to conduct the defence from the existing instructions. Counsel may put detailed questions based on those instructions, while avoiding statements that the defendant would give particular evidence or that the instructions themselves amount to evidence.

4. The judge wrongly prevented counsel from putting detailed factual suggestions to prosecution witnesses. The ruling curtailed cross-examination about whether the complainant knew the appellant and about the mechanics of the fight, including potentially relevant physical evidence. It thereby deprived counsel’s attendance of its proper safeguarding function. The resulting unfairness contravened the common-law right to a fair trial and Article 6; the conviction could not stand.

• Court of Appeal (Criminal Division): Allowed the appeal in [2007] EWCA Crim 1339, held the conviction unsafe because cross-examination had been wrongly curtailed, and ordered a retrial.

• Crown Court at Leeds: Tried the appellant in his absence, after adding a count under section 18 of the Offences Against the Person Act 1861. The jury convicted him and he was sentenced to 54 months’ imprisonment, with three consecutive months for breach of bail.