R v Junaid Ali

The discretion to hold or continue a criminal trial in the accused’s absence must be exercised with great caution and close regard to overall fairness. Fairness to the defence is paramount, but fairness to co-defendants and the prosecution must also be considered. A later arrest under an outstanding bench warrant does not, by itself, make an earlier voluntary absence involuntary. The judge must assess the full circumstances, including the accused’s conduct and the stage reached in the trial. Once the jury has begun deliberating, reopening the defence case to enable the accused to give evidence is permissible only in exceptional circumstances. The assessment is highly fact-sensitive.

The appellant was convicted in his absence in the Crown Court at Derby of burglary and theft and was later sentenced to a total of 45 months’ imprisonment. He did not challenge the original decision to proceed in his absence. During jury deliberations, the court learned that he had been arrested under an outstanding bench warrant but had been taken to the wrong court. His counsel sought to discharge the jury in relation to him, later explaining that the appellant might wish to give evidence. The judge refused the applications and the jury returned guilty verdicts. The central issue was whether the judge had been required to reassess the fairness of continuing the trial and discharge the jury.

The court dismissed the appeal against conviction.

1. Applicable principles. The discretion to hold or continue a trial in the accused’s absence must be exercised with great caution and close regard to the overall fairness of the proceedings. Fairness to the defence is of primary importance, while fairness to any co-defendant and to the prosecution must also be considered. The court applied the principles stated in R v Hayward [2001] EWCA Crim 168; [2001] QB 862, which had been endorsed by the House of Lords in R v Jones [2002] UKHL 5; [2003] 1 AC 1.
2. Effect of the arrest. The appellant’s arrest on 24 July 2025 did not, merely because it occurred, convert his earlier absence into an involuntary or non-deliberate absence. He had failed to attend two pre-trial reviews, had not attended the trial, had not voluntarily presented himself to the court or police, and had not contacted his legal team to say that he wished to attend.
3. Reassessment and jury deliberations. The judge did reconsider the position on the submissions made. Counsel did not ask for the jury’s deliberations to be suspended to obtain instructions. Counsel also accepted that, once deliberations had begun, the defence case could not ordinarily be reopened to allow the appellant to give evidence, since the circumstances did not fall within an exceptional situation permitting further evidence. The judge was entitled to take account of the absence of any evidence explaining the appellant’s non-attendance and the lack of any estimate of when he would arrive.
4. Disposition. Fairness issues in this context are highly fact-sensitive. The judge had not exercised the discretion improperly or acted unfairly. The directions and summing-up disclosed no error, and the circumstantial evidence was powerful. The convictions were therefore not unsafe. The court also noted that a signed waiver of the right to attend had subsequently been received.

1. Court of Appeal (Criminal Division): the appeal against conviction was dismissed; the court held that the convictions were not unsafe: [2026] EWCA Crim 559.
2. Crown Court at Derby: the appellant was convicted in his absence of burglary and theft and was sentenced to a total term of 45 months’ imprisonment.