5.2 Trial - defendant issues

Question 1

Which statutory provision empowers the Magistrates Court to try a defendant in absentia?

Answer 1

Section 11 Magistrates Courts Act 1980

Question 2

When does the magistrates court’s power to try in absentia arise?

Answer 2

Section 11(1) Magistrates Courts Act 1980
... where at the time and place appointed for the trial ... the prosecutor appears but the accused does not

Question 3

Is the magistrates court’s power to try in absentia obligatory or discretionary?

Answer 3

Section 11(1) Magistrates Courts Act 1980
(a)
[children - discretionary]
(b)
[adults - obligatory]

Question 4

How must the magistrates court proceed when trying in absentia?

Answer 4

CrimPR 24.12(3)
Where the defendant is absent—
(a)
the general rule is that the court must proceed as if the defendant—
(i) were present, and
(ii) had pleaded not guilty (unless a plea already has been taken)

and the court must give reasons if it does not do so

Question 5

When will the Magistrates Court not proceed in the absence of an adult defendant?

Answer 5

Section 11 Magistrates Courts Act 1980
(2A)
The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.

However…
(6)
Nothing in this section requires the court to enquire into the reasons for the accused’s failure to appear before deciding whether to proceed in his absence.

Question 6

What happens after D is convicted in absentia in the Magistrates Court?

Answer 6

Section 10(3) Magistrates Court Act 1980
The court may adjourn for up to 4 weeks or proceed to sentencing.

Question 7

When can a trial proceed in the Crown Court in the absence of the defendant?

Answer 7

CrimPR 25.2(1)(b)
the court must not proceed if the defendant is absent, unless the court is satisfied that—
(i)
the defendant has waived the right to attend, and
(ii)
the trial will be fair despite the defendant’s absence

Question 8

What happens where D fails to attend trial?

Answer 8

The judge can issue a ‘bench warrant’ for D’s arrest.

and

D has committed the offence of failing to surrender, contrary to Section 6 Bail Act 1976.

Question 9

What is the leading case on the Crown Court’s discretion to proceed or not proceed in absentia?

Answer 9

R v Jones [2003] 1 AC 1

Question 10

What must the Crown Court take into account when deciding whether to proceed in the absence of the defendant?

Answer 10

R v Jones [2003] 1 AC 1

1. The nature and circumstances of D’s behaviour, especially whether his absence was voluntary and therefore waived his right to be present;
2. Whether an adjournment might solve the matter by D attending at a later date;
3. The likely length of any adjournment;
4. Whether D, despite being absent, wished to be represented at the hearing or has waived his right;
5. Fairness;
6. The public interest;
7. The effect of delay on witnesses’ memories;
8. The impact on joint trials.

Question 11

When can a trial in the Crown Court proceed in the absence of the defendant where his absence if for reasons beyond his control?

Answer 11

R v Jones (no 2) [1972] 2 All ER 731

1. D consents, and
2. The case can be fully presented without unfairness.

The judge must also warn the jury not to hold D’s absence against him.

Question 12

How does the court make sure that unrepresented defendants are able to challenge witness evidence?

Answer 12

CrimPR 25.11(6)(b)
The court may—
… where the defendant is not represented, ask a witness any question necessary in the defendant’s interests.

Question 13

How does the court make sure that unrepresented defendants know what to do in court?

Answer 13

By explaining to D what should happen at each stage of the trial, e.g., that D can put her case to prosecution witnesses in cross-examination and that D can give evidence.

Question 14

What happens where D’s counsel withdraw or are dismissed but D is still entitled to Legal Aid?

Answer 14

R v Chambers [1989] Crim LR 367

The judge will grant an adjournment to enable D to get new representation.

Question 15

When can an unrepresented D not cross-examine a witness?

Answer 15

Youth Justice and Criminal Evidence Act 1999

Section 34 - sex offence complainants
Section 35 - child complainants
Section 36 - the court’s discretion

Question 16

Which Part of the Criminal Procedure Rules deals with restrictions on DD cross-examining witnesses under ss.34-36 Youth Justice and Criminal Evidence Act 1999?

Answer 16

CrimPR 23

Question 17

When will a party who is not physically present in the magistrates court be deemed not to be absent?

Answer 17

Section 122 MCA
An absent party represented by a legal representative shall be deemed not to be absent.
(3) unless his presence is required by statute or bail

Question 18

What happens if the magistrates court convicts D in his absence?

Answer 18

Section 10(3) MCA
The court can proceed to sentence or adjourn to give D notice to attend.

Question 19

What is the leading case on proceeding in D’s absence in the Crown Court?

Answer 19

Jones [2003] 1 AC 1

Question 20

What factors will the Crown Court consider in deciding whether to try an absent defendant?

Answer 20

1.
The nature and circumstances of D's absence;
2.
Whether an adjournment might resolve the matter of absence;
3.
The likely length of adjournment;
4.
Whether D wished to be represented or waived the right;
5.
The extent to which the representative can receive instructions
6.
The disadvantage to D;
7.
The risk it would bias the jury;
8.
The public interest and interest of C;
9. 
Witnesses' memories; and
10.
The prospects of a fair hearing for any co-DD.

Question 21

How should the jury be directed where D is absent?

Answer 21

Not to hold D’s absence against her.

Question 22

How can judges help unrepresented DD?

Answer 22

CrimPR 25.1(6)(b)

Putting questions to witnesses

Question 23

What normally happens when D loses representation?

Answer 23

Chambers [1989] Crim LR 367

The judge will grant adjournment for D to get new representation