F, R. v

A criminal court may proceed with a trial in a defendant’s absence, but must exercise that discretion with great caution, particularly where illness makes the absence involuntary. Fairness depends on the practical prejudice caused, the ability of counsel to represent the defendant, the defendant’s knowledge of the evidence, ability to give evidence, and the interests affected by further delay.

An offender must be sentenced only on facts proved beyond reasonable doubt. In assessing sentence, substantial weight may be required for youth at the time of offending, a lengthy offence-free life thereafter, and grave terminal illness. Immediate custody may mark serious offending, but should not continue beyond what justice and mercy require.

The appellant was convicted at the Crown Court at Guildford of three offences of indecent assault contrary to section 14 of the Sexual Offences Act 1956, and one offence of indecency with a child contrary to section 1 of the Indecency with Children Act 1960. The allegations concerned repeated sexual assaults on his younger sister more than 55 years before the trial, when he was aged between 14 and 16.

He received concurrent sentences totalling two years’ imprisonment. He appealed against conviction on the ground that the judge wrongly began part of the trial while he was absent in hospital. He also appealed against sentence, relying on his youth at the time, subsequent good character and grave ill-health. The central issues were whether the trial had been unfair and whether the custodial term was longer than necessary.

1. Conviction appeal dismissed. The judge had power to proceed during the appellant’s limited absence, but that power required great caution. The court applied the principles identified in R v Jones [2003] 1 AC 1 and R v Howson (1982) 74 Cr App R 172.
2. The decision was not unfair. Counsel was fully instructed and able to protect the appellant’s interests. The appellant had received a transcript of the complainant’s recorded evidence-in-chief and knew the substance of that evidence. He later attended, gave evidence, heard the remaining defence evidence, and was present for speeches and almost all of the summing-up.
3. His absence did not cause material prejudice from the late raising of matters not put to the complainant. Those matters were not prompted by evidence he had not seen, and he had ample earlier opportunity to raise them with his representatives. His ability to give evidence was preserved, which was a critical aspect of participation in the trial: R v Welland [2018] EWCA Crim 2036. The proposed fresh evidence was also inadmissible because it could have been adduced at trial.
4. Sentence appeal allowed in part. The sentencing judge had considered relevant matters but gave insufficient weight to the appellant’s age of 14 when offending, the requirement to sentence only on the eight occasions proved beyond reasonable doubt, his 55 to 60 years without further offending, and his grave end-stage illness.
5. An immediate custodial sentence was justified to mark the offending, but continued imprisonment served no further purpose in the circumstances. The two-year concurrent sentences were quashed and replaced by concurrent sentences of one year’s imprisonment.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed. The appeal against sentence was allowed to the extent of substituting concurrent sentences of one year’s imprisonment.
• Crown Court at Guildford. On 13 December 2017, the appellant was convicted by a jury of three indecent assaults and one offence of indecency with a child. On 15 February 2018, he received concurrent sentences totalling two years’ imprisonment.