Olechowski, R. v

Where an accused person is tried in absence because an unintentional communication failure left him unaware of the trial date, and the trial judge concludes that fairness requires a retrial, the Court of Appeal may grant leave to appeal out of time, allow the appeal, quash the convictions and order a fresh trial.

A Crown Court judge has no jurisdiction to overturn a conviction after trial in those circumstances. The appellate court must make the necessary order.

The appellant, a Polish national with little English, was convicted in his absence at the Crown Court at Blackfriars of two burglaries and sentenced to concurrent terms of 18 months’ imprisonment.

He had not deliberately failed to attend. His solicitors’ arrangements to notify him through his English-speaking sister failed after she moved address and a wrong telephone number was recorded. The trial judge later purported to overturn the convictions and order a retrial, but accepted that he lacked jurisdiction.

The appellant sought an extension of time and leave to appeal against conviction. The application was referred to the Full Court and was not opposed by the Crown. The central issue was the proper appellate response to convictions obtained after an involuntary absence from trial.

1. Appeal allowed. The court granted leave to appeal out of time, quashed both convictions and ordered a fresh trial on each count.

2. The appellant’s absence from trial was not deliberate. He spoke and understood very little English, and the notification arrangements through his sister failed because she had moved without the solicitors being told and the solicitors had recorded an incorrect telephone number. He was therefore unaware of the trial date.

3. The trial judge, having been informed of those circumstances, considered that fairness required a retrial. Although the judge purported to overturn the convictions, he had no jurisdiction to do so. The Court of Appeal also considered that he had no power to grant exceptional leave to appeal.

4. In the circumstances, the proper and fair course was for the appellate court to allow the unopposed appeal and direct a retrial. A fresh indictment was to be preferred and the appellant re-arraigned within two months.

5. Bail was continued subject to a residence condition at the stated address. No reporting condition was imposed.

• Court of Appeal (Criminal Division) — granted leave to appeal out of time, allowed the appeal, quashed the convictions and ordered a retrial.
• Crown Court at Blackfriars — on 3 March 2009, convicted the appellant in his absence of two counts of burglary and imposed concurrent sentences of 18 months’ imprisonment. The trial judge later purported to overturn the convictions and order a new trial, but accepted that he lacked jurisdiction.