Sims, R v

A criminal trial may continue where a defendant is absent or unable to participate because of voluntary, self-induced intoxication. The judge must exercise the discretion with great caution and assess the overall fairness of the proceedings. A proper inquiry is required into the cause and effect of the intoxication. The reason for the defendant’s incapacity may outweigh the incapacity itself where the defendant deliberately seeks to frustrate the trial.

The relevant considerations include the prospect that an adjournment will improve matters, the ability of counsel to represent the defendant and obtain instructions, the disadvantage from the defendant’s inability to give evidence, jury directions, and the interests of co-defendants, witnesses and the public. The defendant’s deliberate manipulation of the process need not secure a discharge of the jury.

The appellant was tried with a co-accused in the Crown Court at Stoke-on-Trent for assault and a racially aggravated public-order offence. The live issue on the assault allegation was self-defence. He was convicted of common assault, acquitted of the other count, and given a community sentence.

During the four-day trial he repeatedly appeared intoxicated after voluntarily taking illicit drugs, including while remanded in custody. He was unable to give evidence and was absent for parts of the proceedings. The Recorder refused applications for medical reports and for discharge of the jury, but obtained medical evidence before the final day. Counsel continued to represent the appellant, and the jury were directed not to hold his absence or failure to give evidence against him.

The appeal alleged unfairness under article 6 because the trial continued despite his incapacity. The central issue was whether the Recorder had properly exercised the discretion to continue the trial.

1. Appeal dismissed. The Recorder was entitled to continue the trial. The appellant’s incapacity resulted from repeated, voluntary ingestion of illicit drugs and was calculated to frustrate the proceedings.
2. R v Jones (Anthony) [2003] 1 AC 1 establishes a discretion to continue a criminal trial during a defendant’s absence. It must be exercised cautiously and by reference to the overall fairness of the proceedings. There is no material distinction in principle between temporary absence and temporary inability to participate fully where each results from voluntary self-intoxication.
3. Before proceeding, the judge must properly investigate the cause and effect of intoxication. Intoxication may arise from anxiety or from ignorance of the consequences of drug-taking. Here the Recorder investigated the position, received medical evidence, and was entitled to find deliberate self-intoxication rather than psychiatric illness or withdrawal symptoms.
4. The Recorder correctly gave substantial weight to the absence of any reliable prospect that an adjournment would cure the problem, the appellant’s ability to manipulate the process, the continued representation by counsel, the availability of his interview and prior instructions, and the undesirability of separating the co-defendants’ trials. Although the appellant suffered some disadvantage in not giving evidence, the Recorder’s direction eliminated any risk that the jury would draw an improper inference from his absence.
5. The trial as a whole was fair. The decision to begin it, and later to refuse to discharge the jury, was therefore correct.

• Court of Appeal (Criminal Division): Appeal dismissed in [2016] EWCA Crim 9.
• Crown Court at Stoke-on-Trent: The appellant was convicted of common assault, acquitted of the racially aggravated offence, and sentenced to a community sentence. The judgment appealed is not separately cited.