Amrouchi, R. v

A trial in a defendant’s absence is lawful only where the court is sure that the defendant has deliberately absented himself from the trial and that no reasonable step can secure attendance. The decision requires great caution and close regard to overall fairness.

Where refusal to attend may stem from uncertainty about the proceedings, the court should ordinarily adjourn briefly and ensure that an explicit warning is delivered that the trial will proceed in the defendant’s absence. The judge must satisfy himself that the warning was received. The prejudice of absence must be assessed in the light of the particular defence, especially where the defendant’s evidence may be essential.

The appellant, a prisoner, was tried and convicted at Aylesbury Crown Court in his absence for violence against prison officers. A cells officer reported that the appellant had refused transport from prison, and the trial judge declined an application for a 24-hour adjournment.

The judge concluded that the appellant deliberately absented himself and proceeded with the trial. The appellant appealed against conviction, contending that the information about his refusal was insufficiently secure and that the judge should have postponed the case to establish his position and give him a clear warning.

The appeal also raised whether a production request under Crime (Sentences) Act 1997, Schedule 1, paragraph 3 should have been made.

1. Appeal allowed. The conviction was unsafe because the trial judge’s decision to proceed in the appellant’s absence was flawed. A trial in absence is a serious and normally unavoidable step. It is permitted where the judge is sure that the defendant has deliberately absented himself from the trial and that no reasonable step can secure his attendance.

2. The judge was required to assess fairness in the particular circumstances. He did not sufficiently consider that the proposed defence was self-defence and might depend entirely on the appellant giving evidence. The possible disadvantages of attending and being cross-examined did not reduce the substantial prejudice caused by depriving him of the opportunity to give convincing evidence.

3. It mattered whether the appellant knew that the required attendance concerned this trial. A refusal to travel without that knowledge did not necessarily establish a deliberate decision to absent himself from the proceedings. The judge also lacked a proper evidential basis for treating the solicitor’s letter as having reached the appellant.

4. The proper course was to adjourn for 24 hours and ensure that an explicit warning was delivered that the trial would take place in the appellant’s absence if he did not attend the following morning. The judge should satisfy himself, preferably by written prison confirmation, that the warning had been delivered. The court could not say that such a warning would have made no difference.

5. The ground based on Crime (Sentences) Act 1997, Schedule 1, paragraph 3 failed. The provision permits a request to the Secretary of State for a prisoner’s production; it does not compel attendance and added nothing where the prison was willing to produce the appellant.

6. The court quashed the conviction and ordered a retrial at Aylesbury Crown Court, subject to the stated circuit direction. The appellant was remanded in custody pending trial.

• Court of Appeal (Criminal Division) — Allowed the appeal, quashed the conviction and ordered a retrial: [2007] EWCA Crim 3019.
• Aylesbury Crown Court — Tried and convicted the appellant in his absence after refusing a 24-hour adjournment.