Hamberger, R. v

A defendant’s involuntary absence through ill health does not automatically render a criminal trial unfair. In a rare and exceptional case, the trial may proceed if the defendant is represented, can challenge the prosecution case, and has a fair means of putting any affirmative account before the jury.

Criminal Justice Act 1982, section 72 requires a defendant who gives evidence as a witness to give sworn oral evidence and be liable to cross-examination. It does not prevent an accused who is genuinely unable to testify orally from seeking to adduce an out-of-court account as hearsay under the Criminal Justice Act 2003. Such relief will be exceptional and subject to careful scrutiny.

The appellant was convicted in his absence at the Crown Court at Southwark of conspiracy to supply cannabis. The prosecution case was circumstantial and relied principally on surveillance evidence linking him to the collection of a large shipment of cannabis resin.

He suffered from serious chronic cardiac illness. The trial judge found that he was involuntarily absent through ill health, but refused applications to stay the proceedings as an abuse of process and permitted the trial to continue. The judge considered measures by which the appellant might present an account, including a live link and hearsay evidence.

On appeal, the appellant contended that he could not participate effectively or give an account, so that a fair trial was impossible. He also challenged the judge’s construction of section 33A of the Youth Justice and Criminal Evidence Act 1999 and section 72 of the Criminal Justice Act 1982.

1. Appeal dismissed. The judge erred in holding that the appellant could apply for a live-link direction under section 33A of the Youth Justice and Criminal Evidence Act 1999. For an adult accused, section 33A(5) requires the relevant mental disorder or impairment to be the reason for an inability to participate effectively as a witness. The appellant’s inability to attend and give evidence arose from angina. The required causal link was absent.

2. That error did not invalidate the decisions to refuse a stay and to proceed in the appellant’s absence. A live link was only one possible measure, and the appellant had not sought to use it. The statutory special-measures scheme did not otherwise permit the accused to give evidence by video link: see R v Ukpabio [2008] 1 Cr App R 6.

3. Section 72 of the Criminal Justice Act 1982 abolished the former right to make an unsworn statement from the dock. It means that an accused who wishes to be a witness in his own defence must give sworn oral testimony and submit to cross-examination. It does not prohibit evidence of the accused’s out-of-court statement where that statement is admissible hearsay under sections 114 and 116 of the Criminal Justice Act 2003. In that event the accused is not giving evidence as a trial witness, so section 72 is not engaged.

4. A defendant’s hearsay application will ordinarily be exceptional. A late defence statement, proof, or recording requires close scrutiny, particularly where the defendant has previously declined to answer questions or to provide a defence statement. Nevertheless, the statutory hearsay provisions are wide enough to permit a genuinely incapacitated defendant to place an account before the jury.

5. The appellant was represented by counsel able to challenge the prosecution evidence. He made no hearsay application and did not seek to use any available measure to put an affirmative account before the jury. Balancing fairness to both sides and the public interest in determination of the serious charge, the judge was entitled to conclude that the trial was fair and that the conviction was safe.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed: [2017] EWCA Crim 273.
• Crown Court at Southwark. The appellant was convicted in his absence on 26 April 2016 of conspiracy to supply cannabis and was sentenced to four years and six months’ imprisonment.