Farrell, R v

A criminal trial in an accused’s absence is an extreme step. Before ordering it, the judge must make a genuine interests-of-justice assessment of the non-exhaustive factors governing absence, including voluntary waiver, the prospect and length of an adjournment, representation and instructions, prejudice to the accused, and the public interest in prompt trial.

A judge who focuses only on the apparent strength of the prosecution case and the accused’s failure to attend, without properly considering whether a short adjournment may secure attendance and the other relevant factors, errs in law. The resulting conviction must be quashed and a retrial may be ordered where the interests of justice require it.

The appellant was tried at York Crown Court for burglary after he failed to attend on the listed trial date. He had been told of the date, warned that the trial could proceed in his absence, and offered travel funds. He was represented at the trial by counsel acting on written instructions.

The trial judge directed that the trial proceed in the appellant’s absence. The appellant was convicted of burglary and sentenced to three years’ imprisonment. After his later arrest, he received a consecutive two-month sentence for failing to surrender to bail.

On appeal, the central issue was whether the judge had lawfully exercised the discretion to try the appellant in his absence under the principles endorsed in R v Anthony Jones [2003] 1 AC 1.

1. Appeal allowed. The court quashed the burglary conviction. It held that the judge had erred in law by ordering the trial to proceed in the appellant’s absence.

2. The principles endorsed in R v Anthony Jones [2003] 1 AC 1 required a real assessment of the interests of justice. They were not exhaustive, but included the nature and voluntariness of the absence, whether and for how long an adjournment might resolve it, representation and instructions, the disadvantage to the accused, the risk of an improper jury inference, timely trial, witness memory, and any effect on co-accused.

3. The judge considered only whether the appellant had voluntarily absented himself and whether counsel had instructions. He did not properly consider whether a short adjournment, including contact with local police, might secure attendance. The trial was short and simple, any adjournment could have been short, and there was no suggested prejudice to the police witnesses’ memories. The case had also reached trial within six months of the alleged offence.

4. The strength of the Crown case and the appellant’s apparent failure to attend did not justify dispensing with the required careful assessment. Trying an accused in absence is an extreme step, requiring greater care than the judge gave it.

5. A retrial was in the interests of justice because the allegation concerned burglary of a dwelling-house and the appellant had been released from custody. The court directed that a fresh indictment be preferred and that the appellant be arraigned within two months. The separate conviction and sentence for failure to surrender to bail remained undisturbed.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the burglary conviction, and ordered a retrial: [2008] EWCA Crim 2748.

• York Crown Court: Tried the appellant in his absence, convicted him of burglary, and imposed three years’ imprisonment. Following his arrest, it imposed a consecutive two-month sentence for failure to surrender to bail. The lower-court citation was not stated in the judgment.