Cavagnuolo, R.

A defendant who knowingly and voluntarily absents himself from a trial may waive the right to attend. The trial judge retains a discretion to proceed, to be exercised with great care and only in rare and exceptional circumstances. Fairness to the defence is paramount, but fairness to the prosecution, victims and witnesses also matters. The judge must weigh the prospects of attendance after an adjournment, representation, the ability to advance a defence, the disadvantage caused by absence, and delay.

If a trial proceeds, it must be as fair as circumstances permit. Directions must expose weaknesses in the prosecution case and make clear that absence adds nothing to it. A misdirection warrants intervention only if it is material and renders the conviction unsafe.

The appellant was convicted in his absence at the Crown Court at Lewes of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. The prosecution relied on a complainant’s identification, CCTV evidence, DNA on a watch recovered at the scene, and previous convictions for violence.

Before trial, the appellant had stopped complying with bail conditions and could not be located. The judge ruled that the trial should proceed in his absence. With leave of the single judge, the appellant appealed against conviction. He challenged the decision to try him in his absence, the summing-up on identification evidence, and the direction on bad character. The central issue was whether those matters, individually or cumulatively, rendered the conviction unsafe.

1. Appeal dismissed. The judge was entitled to order that the trial proceed in the appellant’s absence. The principles derived from Haywood [2001] QB 862 and Jones [2003] 1 AC 1 required a careful discretionary assessment. The appellant knew of the trial date, deliberately absented himself in breach of bail, remained at large, and there was no realistic prospect that a short adjournment would secure his attendance.
2. The appellant was represented by competent counsel, who could advance all available points. His inability to give an account of the DNA evidence was a significant consideration. It did not make the trial unfair because he had given no comment answers when asked about the watch and about what he would say if his DNA were found on it. Further delay would have caused grave prejudice to the prosecution and witnesses. The case was rare and exceptional, not an example of habitual recourse to trial in a defendant’s absence.
3. The judge had given an appropriate direction on identification evidence in accordance with Turnbull [1977] QB 224. The further observation that the failure of two witnesses to identify the appellant was fact-neutral could have been expressed better. Read with the full summing-up, however, it did not unfairly diminish the defence case. The judge had summarised the failed identifications and the reasons for them. The direction was not material and did not render the conviction unsafe.
4. The direction on bad character was imperfect. A proper direction should warn against undue reliance on previous convictions, state that they cannot bolster a weak prosecution case or create prejudice, and direct that guilt must not be inferred from convictions. The omission of an express warning against prejudice was a misdirection, but the direction as a whole was not materially unfair. Neither that error nor the other grounds, separately or cumulatively, raised a doubt about the safety of the conviction.

• Court of Appeal (Criminal Division): By [2017] EWCA Crim 2383, the court dismissed the appeal against conviction.
• Crown Court at Lewes: On 9 March 2017, the appellant was tried in his absence, convicted of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861, and sentenced to imprisonment.