Umerji, R v

A court may try an absent defendant where, after a cautious and individual assessment, it concludes that the defendant has deliberately waived attendance and that an adjournment will not secure attendance. The trial must nevertheless be as fair as the circumstances permit.

Where an absent defendant is unrepresented, the judge must identify weaknesses in the prosecution case and make points available on the evidence. A non-expert must not give opinion evidence resolving the jury’s ultimate question of knowing participation. If such evidence is admitted and repeated without qualification, it may render the trial unfair even where the prosecution evidence is compelling and the defendants deliberately absented themselves.

The appellants were convicted in their absence at Liverpool Crown Court of conspiracy to cheat the public revenue and conspiracy to transfer criminal property. The prosecution alleged their knowing participation in a large MTIC or carousel VAT fraud involving the paper trading and re-export of mobile telephones.

Both appellants had failed to attend their trial after warrants were issued. The trial judge decided that they had waived attendance and that the trial should proceed. Neither was represented when the trial continued. They appealed principally on the propriety of that decision and on whether the trial had been conducted fairly.

The central issue was whether the judge had secured, as far as reasonably practicable, a fair trial for absent and unrepresented defendants.

1. The appeals were allowed. The convictions on both counts were quashed because the appellants had not received a fair trial.

2. The trial judge had been entitled to decide that each appellant had deliberately absented himself and had waived attendance. He had properly approached the question with caution, considered an adjournment, and applied the considerations in R v Jones (Anthony William) [2002] UKHL 5. The PII hearing concerning Umerji’s asserted Dubai travel ban created neither procedural unfairness nor a basis for recusal. The judge had not relied on undisclosed adverse material and made no finding that the Dubai proceedings were contrived.

3. However, the requirement in Haywood & Others [2001] 2 Cr App R 11 applied with particular force. Where an unrepresented defendant is tried in absence, the judge must take reasonable steps during the evidence and summing-up to expose weaknesses in the prosecution case and make available defence points.

4. Mr Stone was not an expert, yet was invited to state that a person could not be innocently involved in the relevant transaction chains. That was impermissible opinion on the sole live issue of knowing participation. The judge repeated its substance in the summing-up without qualification. The evidence therefore unfairly undermined the only available defence.

5. Allad suffered an additional unfairness. Evidence relevant to whether he knowingly participated was not differentiated from evidence concerning Umerji, despite Allad having ceased to be a director before important later developments. General directions to consider each defendant separately did not adequately present those tenable points.

6. The court rejected the remaining disclosure and exhibit-service complaints. A bare proposed defence statement could not circumvent the requirements of section 6A of the Criminal Procedure and Investigations Act 1996 to trigger a section 8 application. The Crown had also complied with section 9 of the Criminal Justice Act 1967 by the time evidence was tendered, including by enabling inspection of documents not relied on.

7. A retrial on a fresh indictment containing both counts was ordered.

• Court of Appeal (Criminal Division). In [2014] EWCA Crim 421, the court allowed both conviction appeals, quashed the convictions, and ordered retrials.
• Liverpool Crown Court. The appellants were tried and convicted in their absence of conspiracy to cheat the public revenue and conspiracy to transfer criminal property.