Clarke, R. v

A criminal trial may proceed in a defendant’s absence where the defendant has consciously refused to engage with the proceedings, has been clearly warned of the consequences, and compelling reasons favour trial without further delay. The court must nevertheless safeguard fairness, including by directing the jury appropriately and ensuring that reasonable points for the absent defendant are taken. An unsupported assertion of mental-health difficulty does not establish unfitness to participate or make the trial unfair. On those facts, there was no breach of Article 6 and no basis for doubting the safety of the convictions.

The applicant was convicted at the Crown Court sitting at Woolwich of murder, conspiracy to defraud and offering to supply cannabis. He received life imprisonment for murder, with a minimum term of 25 years less time spent on remand.

Before trial, the applicant had been given adjournments and opportunities to obtain representation. He failed to attend the eventual trial and did not engage with arrangements for representation. The trial judge ordered that the trial proceed in his absence. The applicant later renewed an application for leave to appeal after a single judge had refused it.

The central issue was whether trying the applicant unrepresented and in his absence had rendered the proceedings unfair or the convictions unsafe.

1. The renewed application for leave to appeal was dismissed. There was no properly arguable criticism of the trial judge’s decision to proceed in the applicant’s absence.

2. The applicant had received an earlier adjournment and explicit warning that, if he did not engage with the process and arrange representation, the trial could proceed without him. At the trial date he was in custody close to the court, had supplied no evidence of steps to obtain representation, and was refusing to participate. Compelling reasons supported proceeding, including the public interest in avoiding further delay and the position of the witnesses.

3. The judge had preserved the fairness of the trial. He directed the jury about the applicant’s absence, fairly summed up the case, warned of the need for caution concerning accomplice evidence, and took reasonable points on the applicant’s behalf. The applicant’s absence was a conscious choice, made with knowledge of its consequences.

4. The mental-health complaint had no evidential foundation. No issue of fitness to participate had been raised while the applicant was represented, and the responsible mental-health team had raised no concern. The complaints concerning custody time limits, trial listing and service of prosecution material were likewise baseless.

5. There was no breach of Article 6. The prosecution case was overwhelming and the court was satisfied that the convictions were safe.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was dismissed in [2020] EWCA Crim 291.
• Court of Appeal (Criminal Division): A single judge refused the initial application for leave to appeal in May 2019.
• Crown Court sitting at Woolwich: The applicant was convicted on 30 January 2018 of murder, conspiracy to defraud and offering to supply cannabis. He was sentenced the following day.