Okedare, R. v

An absconding defendant does not automatically lose the right to seek permission to appeal. A court may infer a lawyer’s actual or implied authority from all the circumstances, but the lawyer must disclose the absconding and explain the asserted authority.

The court may also entertain an application without authority where the interests of justice require it, particularly for an unlawful sentence, want of jurisdiction or a fundamental error. A renewed application carries greater potential adverse consequences and normally requires clearer authority.

A person who may have been trafficked has no automatic immunity from prosecution. Where the available evidence does not establish trafficking, compulsion or the basis for a guilty plea, it may be premature to determine permission to appeal.

The court determined six applications concerning defendants who had absconded or disappeared after, during or before criminal proceedings in four Crown Courts. The common issue was whether, and in what circumstances, the Court of Appeal should entertain applications for permission to appeal made on behalf of an absconding defendant whose lawyers lacked, or might lack, instructions.

One application raised the Crown Court’s jurisdiction to make a confiscation order. Others challenged convictions or sentences but did not raise fundamental error. A further applicant, a Vietnamese youth who had pleaded guilty to cannabis cultivation and later disappeared, relied on a provisional trafficking finding and contended that he should not have been prosecuted.

The court therefore addressed both the proper procedure for absconding appellants and the evidential basis required before a trafficking-related appeal could be determined.

1. Absconding applications. The court held that an application by an absconding defendant is not ineffective merely because the defendant is absent. It endorsed the approach in R. v. Charles and Tucker [2001] 2 Cr. App. R. 15: a single judge or the full court is entitled, but not bound, to infer actual or implied authority from the circumstances. Authority need not be express. It may, however, become harder to infer as the period between instructions, absconding, conviction and appeal lengthens, or where the defendant disengages from the proceedings.

2. Interests of justice and procedure. Even where an application was launched without instructions, the court retained power to intervene in the interests of justice. The clearest examples were an unlawful sentence, want of jurisdiction or a fundamental error. Challenges to discretionary decisions were less likely to justify intervention. A single judge should ordinarily deal with the application in the usual way, but may exceptionally treat it as ineffective where there is no authority and no reason to entertain it. The lawyer must disclose the absconding, explain the basis of asserted authority, and identify any reason for intervention.

3. Renewals and retrials. A renewed application may expose an appellant to costs or loss-of-time consequences. Clear instructions will therefore normally be needed unless the interests of justice require a hearing. There was no basis for a different rule between conviction and sentence appeals. An absconding defendant who obtains an order for retrial may be retried in absence under the procedural consequences of section 8(1) of the Criminal Appeal Act 1968.

4. Individual outcomes. Okedare received leave because the confiscation application raised an important jurisdictional issue. Ashraf’s renewed applications were refused on their merits. The applications of Zameer Hussain, Yasar Hussain and Majed Iqbal were dismissed because their grounds were unmeritorious; the court declined to leave Yasar Hussain in a potentially better position by treating his application as ineffective.

5. K’s application. Applying L, HVN and others v R [2013] EWCA Crim 991, the court held that trafficking alone creates neither immunity from prosecution nor a substantive defence. There was insufficient admissible evidence that K had been trafficked, compelled to offend, or had pleaded guilty for a reason consistent with the proposed appeal. In the exceptional circumstances, and because an adverse determination could be unfair if K had been re-trafficked, permission to appeal was stayed until he could address those matters.

• Court of Appeal (Criminal Division). Determined six applications arising from four separate Crown Court trials. It granted Okedare leave to pursue the jurisdictional confiscation issue, refused Ashraf’s renewed applications, dismissed the applications of Zameer Hussain, Yasar Hussain and Majed Iqbal, and stayed K’s application for permission to appeal.
• Crown Courts at Croydon, Newcastle, Birmingham and Hull. The applications arose from convictions and sentences, including a confiscation order made in Okedare’s absence and K’s guilty plea to producing cannabis.