Hamou, R. v

Where a co-defendant has absconded, a court may proceed without arraignment only if it is satisfied that the defendant waived that right. Absconding on an earlier indictment does not establish waiver of arraignment on a later and materially different indictment of which the defendant had no knowledge.

When considering trial in absence, the court must assess fairness to co-defendants. Severance, or discharge of the jury, is required where an absent defendant’s interview risks prejudicing co-defendants and directions cannot realistically prevent the jury from using it against them.

The three appellants and a fourth defendant were convicted at Canterbury Crown Court of conspiracy to assist unlawful immigration. The alleged conspiracy concerned an attempt to bring the wife of one appellant from France into the United Kingdom unlawfully.

The fourth defendant had absconded before trial. At the outset of the trial, the judge joined indictments, amended the indictment, permitted his trial in absence and refused severance. His police interview was admitted as evidence in his own case, but not against the appellants. After withdrawing his defence of duress, the judge also refused to discharge the jury.

The appeals principally concerned joinder, amendment, arraignment, trial in absence, severance and the fairness of the resulting joint trial.

1. Appeals allowed. The convictions of all three appellants were quashed and a retrial was ordered.

2. The judge was mistaken in treating the indictments as having already been joined. The prosecution had not made the written application required by Criminal Procedure Rules, Rule 3.21. Although that error was not alone decisive, it contributed to an incorrect approach to the objections to joinder.

3. A defendant may in some circumstances be tried without arraignment, but only where he has waived that right. Applying Kepple [2007] EWCA Crim. 1339, the court held that the absent defendant had not waived arraignment on the amended indictment. It was created long after he absconded, substantially differed from the charge to which he had pleaded, and there was no evidence that he knew of it.

4. Following Hayward [2001] QB 862, as approved in Jones [2003] 1 AC 1, fairness to co-defendants was a necessary consideration when trial in absence was contemplated. The combination of circumstances created a clear and unfair risk: the absent defendant’s interview effectively admitted conspiracy once duress was withdrawn, implicated the appellants in substance, and was used in ways that made it difficult for the jury to observe the limiting direction.

5. The court accepted that several subsidiary matters were not independently sufficient to render the verdicts unsafe. Taken together with the procedural errors and prejudice from the absent defendant’s interview, however, they established a material irregularity. Severance should have been ordered at the outset, or the jury discharged when duress was withdrawn.

6. A fresh indictment was directed under Criminal Procedure Rules, Rule 10.82. The retrial was to take place at Canterbury Crown Court. The sentence appeal fell away.

• Court of Appeal (Criminal Division) — allowed the appeals against conviction, quashed the convictions and ordered retrials: [2019] EWCA Crim 281.
• Crown Court at Canterbury — on 17 December 2018, convicted the three appellants and a fourth defendant of conspiracy to assist unlawful immigration.