8.4 Jury Trial: Absence, Unrepresented Defendants & Abuse of Process

8.4 Jury Trial: Absence, Unrepresented Defendants & Abuse of Process

Three situations require the Crown Court to depart from the ordinary shape of a trial: the defendant is not there, the defendant has no lawyer, or the trial should never have been brought.

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1. Presence and absence

The general principle

A defendant should be present throughout the trial. Presence enables them to hear the evidence, give instructions and, if they choose, give evidence. The right is not, however, absolute, and it may be lost or waived.

The recognised exceptions

The Jones factors

R v Jones [2002] UKHL 5 confirms that the discretion to continue in a defendant's absence exists but must be exercised "with great caution and with close regard to the overall fairness of the proceedings", and that the discretion should be exercised in favour of the defendant if the balance is even. The factors include:

1. The nature and circumstances of the defendant's behaviour and, in particular, whether the absence is deliberate and voluntary and amounts to a waiver;
2. Whether an adjournment might result in the defendant being caught or attending voluntarily;
3. The likely length of any adjournment;
4. Whether the defendant, though absent, wishes to be represented or has waived representation;
5. Whether representatives are able to receive instructions and to what extent they can present the defence;
6. The extent of the disadvantage to the defendant in not being able to give their account;
7. The risk of the jury reaching an improper conclusion about the absence;
8. The general public interest that a trial should take place within a reasonable time;
9. The effect of delay on the memories of witnesses;
10. Where there are co-defendants, the undesirability of separate trials and the prejudice to those who are present.

Note the strong steer that it will "very rarely" be appropriate to begin a trial in the absence of an unrepresented defendant who has not waived representation.

The direction to the jury

Where a trial proceeds in absence, the judge must:

• Direct the jury that the absence is not evidence of guilt and must not count against the defendant;
• Warn them not to speculate about the reasons for it;
• Ensure that such defence case as is available is put fairly before them, and that the prosecution evidence is tested so far as possible;
• Give the usual directions on burden and standard of proof with particular care.

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2. Unrepresented defendants

A defendant is entitled to represent themselves. Where they do:

• The judge must assist so far as is necessary to secure a fair trial, without descending into the arena or appearing to act as the defendant's advocate;
• The judge should explain, at the appropriate points, the right to cross-examine, the right to give evidence and to call witnesses, and the effect of not giving evidence — the s.35 CJPOA 1994 warning that the jury may draw such inferences as appear proper. In the Crown Court, the judge satisfies the s.35(2) condition by asking, in the presence of the jury, whether the defendant intends to give evidence and explaining the consequences of not doing so;
• The judge should give guidance on procedure — how to put questions, what may and may not be said in a closing speech;
• The defendant's closing speech comes last, as it would for counsel.

Restrictions. An unrepresented defendant may not cross-examine in person a complainant in a sexual offence case, or a protected witness, under ss.34 and 35 YJCEA 1999, and may be prohibited from cross-examining other witnesses under s.36. Where a prohibition bites, the court invites the defendant to appoint a representative and, failing that, may appoint one itself under s.38.

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3. Abuse of process in the Crown Court

The Crown Court has an inherent power to stay proceedings as an abuse of its process. The classification (Beckford; Maxwell [2010] UKSC 48) is into two categories:

Category 1 — a fair trial is impossible. Typically loss or destruction of evidence, serious delay causing real prejudice, or manipulation of the process such that the defence is disabled. The question is always whether the trial process itself can cure the prejudice: exclusion under s.78, robust directions, the burden and standard of proof, and (where evidence has been lost) a direction about the disadvantage caused will very often suffice, so a stay is genuinely a last resort.

Category 2 — it offends the court's sense of justice and propriety to try the defendant at all. Here a fair trial is possible, but the court declines to allow the prosecution to proceed because to do so would undermine public confidence in the integrity of the criminal justice system. The paradigm is R v Horseferry Road Magistrates' Court, ex p Bennett, where the defendant had been brought to the jurisdiction in deliberate disregard of extradition procedures. Other examples include an unequivocal promise not to prosecute on which the defendant has relied, entrapment amounting to the state creating the offence (Looseley), and serious executive misconduct.

The burden and standard. The defence bears the burden, on the balance of probabilities. The application should be made before arraignment where possible, and in any event as early as the material permits; the judge should determine it before the jury is sworn where the point is discrete.

The relationship with s.78. In Category 1 cases the two remedies overlap: excluding the tainted evidence under s.78 will often be a proportionate response where a stay would not be. In Looseley-type entrapment, the House of Lords held that a stay is the appropriate remedy where the state has created the offence, with s.78 available as an alternative on lesser facts.

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Exam traps in this section

• The discretion to proceed in absence is exercised with great caution and in favour of the defendant where the balance is even.
• Beginning a trial in the absence of an unrepresented defendant who has not waived representation will "very rarely" be right.
• Absence is never evidence of guilt and the jury must be so directed.
• Category 2 abuse assumes a fair trial is possible — the objection is to trying the defendant at all.
• The defence bears the burden on a stay, to the civil standard.