Cavan Hanna & Anor v R

When a defendant deliberately and voluntarily absents himself from trial, the court may proceed in his absence if, applying R v Jones [2002] UKHL 5, a fair trial remains possible and an adjournment would not realistically secure attendance or cure any disadvantage. A defendant cannot obtain an adjournment by manufacturing criticism of competent lawyers so as to cause their withdrawal. The distinction between dismissal and withdrawal may be immaterial where the defendant’s conduct is calculated to frustrate the trial. The judge may explain the voluntary absence to the jury, with a clear direction that it is not an admission of guilt. Fairness to an unrepresented and absent defendant requires reasonable safeguards, but not a running commentary or a frozen trial. Fresh grounds of appeal require strict compliance, cogent justification and prompt application.

The appellants were tried at Woolwich Crown Court on charges of conspiring to supply cocaine and to launder criminal property. After repeated applications to adjourn and challenges to the admissibility of EncroChat evidence, Cavan Hanna dispensed with his legal representatives and Jamie Hanna’s representatives withdrew following a dispute. Both appellants then refused to attend or participate in the trial. They were convicted and sentenced, with Jamie Hanna receiving 25 years’ imprisonment for the drug conspiracy.

Jamie Hanna obtained leave to appeal on the issue of proceeding without representation. Both appellants renewed applications for permission on other conviction and sentencing grounds. They also sought to introduce further complaints about trial fairness. The central questions were whether the trial could fairly proceed in their absence, whether further adjournments or expert evidence were required, and whether the sentences were unsafe or excessive.

Appeal and applications. Jamie Hanna’s appeal against conviction was dismissed. His convictions were safe. All other applications, including applications for extensions of time and permission to appeal against conviction or sentence, were refused.

1. Trial in absence. Applying the principles in R v Jones [2002] UKHL 5, the judge had acted within his discretion. Jamie Hanna knew of the trial, had repeatedly refused to attend, could have represented himself, and remained absent even when given opportunities to attend. The court considered the relevant factors, including deliberate waiver, the prospects and effect of an adjournment, representation, disadvantage in presenting the defence, the risk of jury prejudice and the public interest in a timely trial. R v Amrouchi [2007] EWCA Crim 2019 was distinguishable on its facts.
2. The difference between dismissing solicitors and causing them to withdraw was immaterial in this case. Jamie Hanna’s conduct was calculated to procure withdrawal and an adjournment. Counsel were also entitled to withdraw because they could not advance criticisms of the former solicitors which they knew to be unfounded. The approach to adjournment was subsequently confirmed by R v Murray [2023] EWCA Crim 282.
3. Fairness. A judge may inform the jury that a defendant’s absence is voluntary, provided the jury is clearly directed that absence is not an admission of guilt and adds nothing to the prosecution case. An absent and unrepresented defendant remains entitled to a fair trial, but fairness does not require a running commentary, an artificial trial or the freezing of the prosecution case. The judge took reasonable safeguards, including maintaining trial bundles and giving adequate opportunity to consider the section 35 adverse-inference notice. The additional fairness complaints were therefore unarguable. The court also held that the call to a solicitor was not privileged, possession of a BQ Aquarius handset was not bad-character evidence within section 98 of the Criminal Justice Act 2003, and a prosecution closing speech was permissible under the Criminal Procedure Rules.
4. Other grounds. The only live issue was attribution of the EncroChat handles, a factual issue for which no viable expert challenge had been identified. The complaints of solicitor negligence were unsupported. Applying the strict approach in R v James [2018] EWCA Crim 285, the fresh fairness grounds were also refused for delay and lack of cogency. The sentencing judge was entitled to assess the conspiracy by reference to 89 kg of cocaine; even the lower figures would have justified the sentences.

1. Court of Appeal (Criminal Division): In Cavan Hanna & Anor v R [2024] EWCA Crim 1315, Jamie Hanna’s conviction appeal was dismissed and all other applications were refused.
2. Woolwich Crown Court: The appellants were convicted after trial and sentenced on the drug-conspiracy, money-laundering and related possession counts.