Boodhoo (a Solicitor), Re

A legal representative’s withdrawal from a criminal trial after a defendant deliberately absents himself is not unreasonable merely because representation might assist the trial to proceed. The representative must make an independent professional assessment of whether the absent defendant can properly be represented in the defendant’s best interests.

A trial judge must decide whether to proceed in the defendant’s absence without assuming that existing legal representation will continue. A wasted costs order under Prosecution of Offences Act 1985 requires conduct that is improper, negligent or objectively unreasonable. Conduct with a reasonable professional explanation is not unreasonable.

The appellant solicitor represented a defendant charged with burglary, theft and driving offences. The defendant, who had given difficult and limited instructions, deliberately failed to attend his Crown Court trial. After the judge indicated that he was minded to proceed in the defendant’s absence, the solicitor and counsel withdrew because they considered that they could not properly conduct the contested trial without current instructions.

The Recorder adjourned the trial and later made a wasted costs order against the solicitor under section 19A of the Prosecution of Offences Act 1985. The appeal concerned whether the withdrawal was an improper, negligent or unreasonable act, and whether the Recorder could assume that the solicitor and counsel would continue to represent the absent defendant.

1. Appeal allowed. The wasted costs order was quashed. The solicitor’s decision to withdraw was neither improper nor negligent and could not properly be characterised as unreasonable for the purposes of section 19(3) of the Prosecution of Offences Act 1985.
2. The court held that the Recorder had treated observations in R v Jones (Anthony) [2003] 1 AC 1 as imposing a continuing duty on legal representatives. That was incorrect. The question in that case was whether a trial could proceed in the defendant’s absence, not the professional duties of representatives once such a decision had been made. A defendant’s waiver, or possible waiver, of the right to representation does not determine whether representatives have a continuing duty to act.
3. The solicitor was entitled to conclude that he could not properly represent a defendant who had deliberately absented himself, had been difficult to obtain instructions from, and faced a contested trial involving witnesses and an alibi. Criminal trials may develop in ways not apparent from the papers. The Recorder should not have assumed that representation would continue when deciding whether to proceed in the defendant’s absence.
4. Legal representatives should give all possible assistance to the court where they can properly do so. They may continue where it can properly be inferred that the defendant expects this, or where a discrete legal point can determine the case. Those examples are not exhaustive. The representatives’ discretion to withdraw should be respected where they genuinely consider that continued representation would not permit proper representation in the defendant’s best interests. Different counsel may in an appropriate case be appointed to represent an absent defendant.
5. The Recorder’s findings that withdrawal was intended to frustrate the court’s process, and that the reason given was frivolous or fatuous, were unjustified. The decision whether to proceed in the defendant’s absence remained the Recorder’s responsibility.

• Court of Appeal (Criminal Division): Allowed the solicitor’s appeal and quashed the wasted costs order: [2007] EWCA Crim 14.
• Crown Court at Chester: Mr Recorder Chambers QC made a wasted costs order against the solicitor on 30 June 2006 following the adjournment of the defendant’s trial.