R v Anthony Reid

A defendant who becomes unrepresented during a criminal trial remains entitled to a fair trial and to the benefit of any continuing representation order. The court must address whether fresh representation, an adjournment or a retrial is required, and should ensure that the defendant can obtain advice from solicitors who remain on the record.

Bad character evidence must have a clearly identified relevance to the issue in dispute. Evidence admitted to correct a false impression must go no further than necessary. Unproved allegations and indiscriminate disciplinary material may be substantially prejudicial. Evidence concerning a sentencing finding of dangerousness also requires particular care, since that finding concerns future risk and is not itself evidence of misconduct.

Following a trial at Norwich Crown Court, the appellant was convicted of assault occasioning actual bodily harm and sentenced to three years’ imprisonment. During the trial he dispensed with his trial counsel, although his solicitors remained on the record. The judge refused to restart the trial, permitted extensive evidence of previous convictions and prison adjudications, allowed cross-examination concerning privileged solicitor material, and repeatedly referred to findings that the appellant was dangerous.

The appellant applied out of time for leave to appeal against conviction and sentence. The central issues were whether the conduct of the trial denied him a fair trial, whether the conviction was safe, and whether a retrial should be ordered.

1. Disposition. The court granted the extension of time and leave to appeal. It allowed the appeal against conviction and quashed the conviction. The sentence appeal fell away. A retrial was refused because the appellant had been denied a fair trial and had served the sentence imposed.
2. A defendant who dispenses with counsel during a trial may thereafter be required to represent himself, but the judge must deal fairly with the consequences. The judge should not impose an unjustified immediate choice between existing counsel and self-representation, should consider whether fresh counsel can be instructed and whether the trial should restart, and should give the defendant an opportunity to make submissions. A continuing representation order remains important, and a legally aided defendant is entitled to advice from solicitors who remain on the record. The court referred to R v Nguyen [2022] EWCA Crim 1444; [2023] 1 WLR 975. Little weight could be given to the appellant’s apparent agreement to proceed without representation in the circumstances.
3. Where previous convictions are relied on as evidence of propensity, the prosecution must identify their precise relevance to the issue for the jury. A general reference to a tendency to behave in the way alleged was insufficient, particularly where the evidence was highly prejudicial.
4. The admission of 224 prison adjudications was impermissibly indiscriminate. Under section 105(6) of the Criminal Justice Act 2003, evidence used to correct a false impression must go no further than necessary. Unproved allegations could not assist the jury and increased prejudice. The appellant should also have had an opportunity to make submissions, including submissions under section 78 of the Police and Criminal Evidence Act 1984.
5. Any waiver of legal professional privilege required careful definition. The judge should have considered whether the appellant waived privilege over the whole file or only particular matters, and whether the material relied on was relevant to correcting a false impression. The use of damaging but largely irrelevant solicitor’s notes was a further serious deficiency.
6. Evidence of dangerousness in the sentencing context required considerable care. A finding of dangerousness concerns an assessment of future risk on present evidence and should not automatically be treated as evidence of bad character. The judge was wrong to insist that the appellant had necessarily been found dangerous on two separate occasions, given the statutory provisions in force when the later sentence was imposed. Repeated assertions to the jury that two judges had found the appellant dangerous were highly prejudicial.
7. The cumulative effect of these deficiencies meant that the trial was unfair and the conviction could not be regarded as safe. The court considered that the sentence was not wrong in principle or manifestly excessive, but it was unnecessary to determine the sentence appeal.

• Court of Appeal (Criminal Division): On 6 February 2024, granted an extension of time and leave to appeal, allowed the appeal against conviction, quashed the conviction and refused a retrial: [2024] EWCA Crim 308.
• Crown Court at Norwich: Following trial, convicted the appellant of assault occasioning actual bodily harm and sentenced him to three years’ imprisonment on 20 December 2021.