Lopez, R. v

A criminal trial may begin in the accused’s absence only after the court has exercised the utmost care and caution. It must first determine whether the accused deliberately and consciously chose to be absent. It must then consider all relevant circumstances, including the prospect and effect of an adjournment, representation, ability to obtain instructions, prejudice to the defence, and the interests of justice.

A jury trying an absent accused requires clear, bespoke directions. It must decide solely on the evidence, without speculating about the absence or treating it as evidence of guilt. Failure to follow those safeguards may make the convictions unsafe.

The appellant, then aged 17, was convicted in his absence at Kingston upon Thames Crown Court of two offences of possessing class A drugs with intent to supply. He was sentenced to concurrent terms of 42 months’ detention in a young offender institution.

He had pleaded not guilty and retracted admissions made in police interview. His case was nevertheless called for trial when contact through his former girlfriend’s telephone had failed. The Recorder did not rule on whether the appellant had deliberately absconded or whether trial should proceed without him. The appeal concerned the propriety and fairness of the trial in his absence, including the absence of suitable jury directions.

Disposition

1. Leave to appeal was granted. The appeal against conviction was allowed because the trial was affected by material irregularities which rendered both verdicts unsafe. The convictions were quashed. The Crown did not seek a retrial and the appellant was to be released.

2. Applying R v Jones [2003] 1 AC 1, the court held that a decision to commence a trial in the defendant’s absence demands the utmost care and caution. The first question is whether the defendant deliberately and consciously chose to be absent. Even if that is established, the court must assess all relevant circumstances, including the factors identified in Jones [2001] QB 862.

3. There was no proper basis for finding that the appellant had deliberately and consciously waived his entitlement to attend. Contact arrangements through his girlfriend’s telephone were precarious and the reason for the failure of contact was unknown. Further investigation was required. An immediate trial was particularly unjustified because the defence substantially depended on the appellant explaining why his interview admissions were said to be false.

4. The jury should also have received bespoke directions that they must try the case solely on the evidence, must not speculate about the appellant’s absence, and must not regard it as evidence of guilt. No suitable direction was given. That failure, together with the unjustified decision to proceed, made the verdicts unsafe.

5. Although unnecessary to the disposal of the appeal, the court expressed grave concern about the summing-up. It failed clearly to explain the Crown’s burden of proof, wrongly suggested that acquittal required the jury to be sure of innocence, and did not adequately explain the ingredients of possession with intent to supply. In a case involving drugs found at another person’s property, the jury should have been directed that conviction required proof that the drugs were in the defendant’s custody and under his control.

• Court of Appeal (Criminal Division): Leave to appeal was granted and the appeal against conviction was allowed. The convictions were quashed: [2013] EWCA Crim 1744.

• Crown Court at Kingston upon Thames: On 27 March 2013 the appellant was convicted in his absence of two offences of possessing class A drugs with intent to supply. On 7 May 2013 he received concurrent terms of 42 months’ detention in a young offender institution.