R v Muhammad Hanif Arshad

A criminal trial may proceed in a defendant’s absence only where the defendant has waived the right to attend and the trial will remain fair. The discretion must be exercised with great care, particularly where the defendant is unrepresented, and fairness to the defence is paramount. The seriousness of the alleged offence is not itself a relevant factor. A reference to seriousness will not invalidate the decision if it was made while assessing the evidence and fairness, and the judge otherwise applied the proper factors. Those factors include the voluntariness of the absence, prospects and length of adjournment, representation and available instructions, prejudice to the defence, risk of improper inferences, public interest in a timely trial, and effects on witness memory.

The appellant was convicted at Birmingham Crown Court of rape and two sexual assaults after the trial judge permitted proceedings to continue in his absence. He had deliberately failed to attend hearings and had apparently travelled abroad. Cross-examination of the complainant had already taken place under section 28 of the Youth Justice and Criminal Evidence Act 1999. The appellant appealed with leave, arguing that the trial judge had misdirected herself by considering the seriousness of the allegations and had failed to give sufficient weight to the unfairness caused by his absence. The central issue was whether the trial could fairly continue in his absence and whether the convictions were safe.

Appeal dismissed. The Court found no error of law in the trial judge’s ruling and was sure that the convictions were safe.

1. Applicable test. Rule 25.2(b) of the Criminal Procedure Rules requires the court to be satisfied both that the defendant has waived the right to attend and that the trial will be fair despite the absence. Consistently with R v Jones [2002] UKHL 50; [2003] 1 AC 1, the discretion must be exercised with great caution. Fairness to the defence is of prime importance, particularly where the defendant is unrepresented.
2. Relevant considerations. The guiding principles and factors identified in R v Hayward and Jones [2001] EWCA Crim 168; [2001] QB 862 required consideration of the voluntariness of the absence, whether an adjournment would resolve the problem, its likely length, representation, available instructions, disadvantage to the defence, the risk of improper jury conclusions, the public interest in timely resolution, and the effect of delay on witnesses. R v Amourichi [2007] EWCA 3019 illustrated the importance of considering the disadvantages caused by absence.
3. Seriousness of offence. The seriousness of the offence is not a relevant factor because the overriding concern is fairness, which is not altered by the gravity of the allegation. The trial judge’s reference to seriousness did not invalidate her decision because it occurred while she was assessing the prosecution evidence and fairness, including the appellant’s detailed interview. A similar reference in R v Jones had not invalidated the exercise of discretion.
4. Application. The appellant had deliberately absented himself and plainly waived attendance. Numerous adjournments had failed to secure his presence, and the likely further delay was unlimited. He remained represented throughout, had given a full account in interview, and his instructions were reflected in the section 28 cross-examination. Although his absence created a serious disadvantage to his consent defence, the trial judge considered that disadvantage carefully. The jury was properly directed, and the public interest and witness-memory considerations favoured continuation. The balance therefore supported proceeding in his absence.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 67, the appeal against conviction was dismissed and the convictions were held safe.
• Crown Court at Birmingham: The appellant was convicted on 16 February 2022 after a trial conducted in his absence and was sentenced to 12 years’ imprisonment for rape, with concurrent sentences for the sexual assaults.