Clarke, R v

A criminal trial may fairly proceed in a defendant’s absence where the defendant knows of the trial, deliberately declines to attend or be represented, and the judge has considered the relevant criteria. A judge need not reproduce a specimen jury direction. The direction must be tailored to the case and must make clear that absence and lack of representation are neutral matters.

A conviction is not unsafe because potentially favourable forensic material was not fully explored, or because of a peripheral error, where neither point could affect the case as advanced. Identification evidence from CCTV may be admissible where the witness is familiar with those depicted and the jury receives an adequate warning.

The appellant was convicted at the Crown Court at Stafford, in his absence and without representation, of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861. The prosecution case relied principally on a prison officer’s identification of the appellant on CCTV as entering the complainant’s cell with a co-defendant who later pleaded guilty.

On appeal, the appellant contended that the trial was unfair and contrary to article 6 of the European Convention on Human Rights. He also challenged the handling of his absence, forensic evidence, interview evidence, CCTV identification, the identification direction, the admission of the co-defendant’s conviction, and the joint-enterprise direction.

1. Appeal dismissed. The appellant knowingly chose not to attend his trial and withdrew his instructions to his legal representatives. He had been warned that the trial might proceed in his absence. The trial judge was entitled to conclude that a further adjournment would not secure either attendance or representation. Having considered the issues arising from R v Jones [2003] 1 AC 1, the judge could properly allow the trial to proceed.
2. The judge was not required to follow the Judicial Studies Board specimen direction verbatim. His directions accurately explained that the appellant’s absence and lack of representation were matters of choice, were neutral, and could not be treated as evidence of guilt. The jury was repeatedly directed to decide the case only on the evidence and was correctly reminded of the burden and standard of proof.
3. The fuller forensic findings might preferably have been explained, but their omission could not make the conviction unsafe. The prosecution did not allege that the appellant had used a weapon or directly participated in the attack. The absence of forensic material implicating him had very little probative value in the joint-enterprise case advanced.
4. Any inaccuracy in the judge’s description of the appellant’s refusal to be interviewed was peripheral. The appellant had said nothing, and the jury was expressly directed that his silence was his right and had no bearing on guilt.
5. The prosecution was entitled to rely on the prison officer’s CCTV identification. Her familiarity with every inmate on the wing, her viewing of clearer footage, and the repeated images made the identification capable of reliable assessment. The information she had received beforehand could not itself safely be put before the jury because of its prejudice. If a Turnbull warning was required, the warning given was adequate.
6. The co-defendant’s guilty plea was admissible to establish that the complainant had been assaulted, subject to the careful direction that it was no evidence of the appellant’s guilt. The joint-enterprise direction was sound: voluntary presence in the cell for six minutes could support an inference that the appellant knew the complainant was being attacked with a weapon.

1. Court of Appeal (Criminal Division). The appeal against conviction was dismissed: [2009] EWCA Crim 1228.
2. Crown Court at Stafford. The appellant was convicted in his absence and without representation of unlawful wounding, and received an extended sentence of four years’ imprisonment with one year on licence.