Taylor & Anor, R. v

A defendant’s right to be present and legally represented at trial is fundamental, but it is not absolute. When illness causes an involuntary absence, the judge must assess whether an adjournment is likely to resolve the difficulty, the practical prejudice caused by continuing without the defendant, and the public interest in a continuous trial. A short adjournment will ordinarily be appropriate where it will enable recovery. Continuing is permissible only exceptionally, where delay offers no realistic solution and the defendant will suffer no material prejudice.

Where a charge concerns a dishonest written right-to-buy application, the jury must focus on the representation made at the time of the application. Earlier occupation or subletting may be evidence of its falsity, but is not itself the alleged misrepresentation.

David Taylor was convicted at Canterbury Crown Court of sixteen counts of false accounting and one count of deception. His former wife, Tina Paivarinta-Taylor, was convicted only of the deception count. During the trial Taylor was absent through ill-health while prosecution witnesses gave evidence. The trial judge refused an adjournment and permitted the trial to continue.

Both defendants also challenged their convictions on count 5, which concerned a written application to buy a council property. They contended that the jury directions could have permitted conviction by reference to alleged subletting before the application period, rather than dishonesty in the application itself. The appeals raised the propriety of continuing a trial during an involuntary medical absence and the safety of the count 5 verdicts.

1. The appeal was dismissed and the applications concerning count 5 were refused. The trial judge was entitled to allow the prosecution to continue while Taylor was involuntarily absent through ill-health.

2. The right to be present at trial, to instruct representatives, and to see and hear adverse witnesses is fundamental. It serves both effective participation and the integrity of oral evidence. It is nevertheless not absolute. Applying the factors explained in R v Jones [2003] 1 AC 1 and consistently with Halson [1981] Crim LR 720, the judge had to consider the likely duration and utility of an adjournment, the ability of legal representatives to act without the defendant, prejudice to the defence, and the public interest in a continuous trial.

3. An adjournment for a short illness should ordinarily be granted unless compelling circumstances require otherwise. If the judge doubts the genuineness or gravity of asserted symptoms, the proper course is to seek further medical evidence, with the defendant’s agreement, rather than to make an unsupported medical assessment. The trial judge’s disparaging comments about the medical evidence and the apparent weakness of the defence were inapposite.

4. On the facts, however, a short adjournment was unlikely to resolve Taylor’s long-standing anxiety and stress. The absent witnesses’ evidence was unlikely to be materially affected by his presence, given the nature of the defence. He therefore suffered no material prejudice from the limited continuation of the trial.

5. For count 5, the alleged deception was the written application made between 1996 and 1998. The judge should have distinguished more clearly between that representation and evidence of earlier subletting. Reading the summing-up and written directions as a whole, however, the jury were sufficiently directed that they had to find the March 1997 application dishonest under the right-to-buy scheme governed by the Housing Act 1985. The verdicts were safe.

• Court of Appeal (Criminal Division) Dismissed David Taylor’s appeal and refused both defendants’ applications challenging the convictions on count 5.
• Canterbury Crown Court Convicted David Taylor of sixteen counts of false accounting and one count of deception. Convicted Tina Paivarinta-Taylor of the deception count only.