Wells v R

A defendant who deliberately absents himself from trial may forfeit procedural advantages that attendance would have secured. However, the court retains a continuing duty to preserve the fairness of the proceedings at every stage.

When an absconding defendant is later brought before the court, the judge must make realistic enquiries into whether material prejudice can be remedied. This may require considering recall of prosecution witnesses or an expedited retrial. Judicial questioning cannot ordinarily replace counsel’s cross-examination where important inconsistencies remain untested. The jury should also be alerted to any material disadvantage caused by the lack of cross-examination. A conviction is unsafe where these safeguards are insufficiently addressed.

The appellant was convicted at Truro Crown Court of historic sexual offences against two sisters and sentenced to seven years’ imprisonment. He had knowingly failed to attend when the trial began. The judge issued a warrant and allowed the prosecution case to proceed in his absence. Defence counsel and solicitors then withdrew.

The appellant was arrested after the complainants had given evidence and been questioned by the judge. He returned to court, gave evidence and was cross-examined, but the complainants were neither recalled nor cross-examined by counsel. The central issue was whether the resulting convictions were safe, particularly because a significant inconsistency in one complainant’s accounts had not been tested.

Appeal against conviction allowed. The convictions were quashed and a retrial on a fresh indictment was ordered.

1. The judge was entitled to conclude that the appellant had knowingly and deliberately absented himself. It was within the judge’s discretion to begin the trial and, while the appellant remained absent, to continue with the prosecution evidence. The judge was also entitled to question the witnesses within the limits of judicial impartiality.

2. The principle in R v Jones [2003] AC 1 meant that a defendant who voluntarily elects not to attend cannot ordinarily complain merely because the trial proceeds differently in his absence. That principle did not remove the court’s duty to assess the fairness of the process and the safety of the convictions on the facts as they developed.

3. After the appellant’s arrest, insufficient was done to determine whether the resulting procedural unfairness could be cured. Proper cross-examination was particularly important because H had initially described non-penetrative sexual conduct but later alleged repeated rape. That inconsistency had not been explored either by counsel or in the judge’s questions.

4. The judge should have made searching enquiries about recalling H and V for cross-examination, or about an expedited retrial. The absence of any such enquiry, coupled with the lack of a summing-up direction on the disadvantage caused by the complainants not being cross-examined, rendered the convictions unsafe. The court applied the fairness guidance in Hayward [2001] QB 862.

5. The Crown’s application for a retrial was unopposed. The court ordered a retrial on a fresh indictment. No further issue arose on the appeal against sentence.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the convictions and ordered a retrial on a fresh indictment: [2013] EWCA Crim 2043.
• Crown Court at Truro: The appellant was convicted of historic sexual offences and sentenced to seven years’ imprisonment.