Emery, R. v

A trial may proceed in an accused’s absence where the trial judge is entitled, on the available medical and contemporaneous evidence, to find that the accused is fit to participate and has deliberately chosen not to do so. An adjournment for further psychiatric evidence is unnecessary where there is no reason to think it would alter that conclusion.

The court is not required to devise participation adjustments for an accused who refuses to attend, particularly where no proposal is made that assistance would enable participation. In those circumstances, proceeding with the trial causes no unfair prejudice and does not render the convictions arguably unsafe.

The applicant was convicted at the Crown Court at Cambridge of blackmail, affray, theft and criminal damage, and was sentenced to 34 months’ imprisonment. His trial proceeded in his absence after he dismissed counsel and refused to attend court.

He sought an extension of time to apply for leave to appeal against conviction. He contended that the recorder had wrongly found him fit to stand trial, had failed to consider adjustments that might assist his participation, and had wrongly treated his absence as voluntary. His application for leave to appeal against sentence was abandoned.

The central issue was whether the recorder had been entitled to refuse an adjournment and to continue the trial in the applicant’s absence.

1. The renewed application for an extension of time was dismissed. The proposed appeal disclosed no arguable basis for concluding that the convictions were unsafe.
2. The recorder was entitled to find that the applicant was fit to stand trial. The medical reports did not identify an obstacle to his participation. Although they were not recent, there was no basis for thinking that a further report would materially alter the position. The applicant’s coherent correspondence, his accounts in interview, and his ability to instruct counsel to seek a Goodyear indication were recent evidence of his capacity to understand the issues and give instructions (paras 17–18).
3. The recorder was also entitled to find that the applicant’s absence was a deliberate choice made after his attempts to obtain an adjournment had failed. The applicant had refused to come from the cells and later refused transport from prison. The recorder could properly regard an adjournment for further psychiatric evidence as facilitating an attempt to delay the proceedings (paras 17–19).
4. There was no obligation to propose adjustments, such as an intermediary, where the applicant had flatly refused to attend and no submission had been made that particular assistance would enable him to participate. The trial therefore proceeded without unfair prejudice to him (paras 19–20).
5. The application for leave to appeal against sentence had been abandoned and could not succeed (paras 2, 21).

• Court of Appeal (Criminal Division): The renewed application for an extension of time to seek leave to appeal against conviction was dismissed. The proposed appeal was not arguable.
• Crown Court at Cambridge: On 29 January 2016, the applicant was convicted after a trial before Mr Recorder Lowe of blackmail, affray, theft and criminal damage. On 4 February 2016, he was sentenced to 34 months’ imprisonment.