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Defendant Non-Attendance: Should I stay or should I go?

All counsel at some point in their career will experience the non-attendance of their lay client at trial, whether that be unexpectedly or where the court has been alerted to the Defendant’s disengagement prior to trial and a warrant was issued and remains outstanding. When this occurs there are several factors that must be considered which engage ethical duties, the criminal procedure rules and case law.

Regina v Jones (Anthony) [2002] UKHL 5

This is the leading case on such matters and concerns an appeal to the House of Lords against a decision by the Court of Appeal to dismiss an appeal against conviction. In brief, the Appellant Mr Jones failed to attend a refixed trial date and the case was relisted. He did not attend the second fixture and so it was adjourned until the following day. He did not attend. The Appellant’s legal team had withdrawn on the refixed trial date and so he was unrepresented at the two subsequent trial dates. The judge took the view that the Defendant had deliberately frustrated proceedings and upon application by the Crown proceeded to try him in absence. He was convicted and sentenced to a term of imprisonment. Dismissing his appeal, the Court of Appeal concluded that it had the discretion to proceed in a Defendant’s absence, but this should be exercised with great caution; the Court was required to pay close regard to the overall fairness of proceedings. On appeal to the House of Lords counsel for the Appellant submitted that a trial in the Crown Court of a Defendant who is neither present nor represented from its commencement is unlawful and would be nothing short of a paper exercise with an inevitable conviction. The House of Lords disagreed and endorsed the factors to be considered by the Court set out in Hayward; Jones; Purvis [2001] Q.B. 862, with one exception (that the seriousness of the offence should be a consideration): In deciding whether to proceed the judge should have regard to all the circumstances, including:

(a) the nature and circumstances of the Defendant’s behaviour in absenting himself from the trial or disrupting it, and in particular whether the behaviour was voluntary and so plainly waived the right to be present;

(b) whether an adjournment would resolve the matter;

(d) whether the Defendant, though absent, wished to be represented or had waived his right to representation;

(e) whether the Defendant’s representatives were able to receive instructions from him and the extent to which they could present his defence (and as to there being no distinction in principle between instructions received before and instructions received after the date on which a Defendant absconded (undesirable to impose any artificial restriction on the instructions upon which counsel can act));

(f) the extent of the disadvantage to the Defendant in not being able to present his account of events;

(g) the risk of the jury reaching an improper conclusion about the absence of the Defendant;

(h) the general public interest that a trial should take place within a reasonable time;

(i) the effect of the delay on the memories of witnesses;

(j) where there was more than one Defendant, and not all had absconded, the undesirability of having separate trials.

Will the Court proceed in absence?

An application to proceed in absence by the Crown is usually the starting point. Each of the factors in Hayward must be applied to the specific circumstances of the case. Most critical is the nature and circumstances of the Defendant’s behaviour in absenting himself and in particular whether the behaviour was voluntary and so plainly waived the right to be present. A good grasp of the chronology of the case will be necessary. The longer a Defendant has absented himself from proceedings the more likely the court will conclude his absence is voluntary, particularly where the defence have failed to contact him. Undoubtedly the Court is unlikely to proceed where a Defendant who has consistently attended court when he has been required to do so and been fully engaged has unexpectedly lost touch with his team. Equally, if a Defendant is unwell there will be little point making such an application. That said, a Defendant who is persistently unwell will win less favour with the Court as this may be a tactic to frustrate the trial process, and so will one that has openly indicated to his defence team that he will not attend. Any adjournment to secure his attendance in these circumstances is potentially futile.

The other most significant factor is the extent of the disadvantage to the Defendant, which goes to the issue of fairness. The judge will balance this against the disadvantage to the Crown if the trial were not to proceed. In a recent case the fact that the police had only attempted to execute a warrant on one occasion did not win favour with the Court, as more attempts might have secured his attendance. If prosecuting and where there is an outstanding warrant, it will be vital to obtain an update from the OIC, and if there is time, make further attempts to execute the warrant. On another case on day 1 of trial I instructed police to attend 3 addresses linked to the Defendant to evidence that we had made every effort to bring the Defendant to court.

Fairness to the Defendant is specified in r.25.2(1)(b) of the Criminal Procedure Rules 2020 (SI 2020/759), which stipulates that a court should not proceed in the absence of the Defendant unless it is satisfied that he has waived his right to attend and that the trial would be fair. To evidence that the Defendant has waived his right, a note of the judge’s warning to the Defendant usually made at PTPH, about proceeding in absence is essential. On the occasion that a trial date is refixed, evidence that the Defendant knew of the new date must also be addressed. It is possible that a Defendant may not be aware of the new date, particularly where there has been a house move, or defence have lost touch. That said, it is the Defendant’s responsibility to keep in regular contact with his legal team and evidence of no contact will be a strong indication that he has waived his right to attend. It will be incumbent on defence counsel to provide updates on attempts to contact the client and last known contact with him. However. waiving the right to attend does not equate to waiver of representation. This will depend largely on what instructions the Defendant has provided to his legal team, i.e. whether there is a signed proof of evidence or Defence Case Statement. However, in some cases a Defendant can be absent for quite some time, meaning stage 2 is not complied with, and so counsel is left in a situation where they either have no instructions or very limited instructions upon which to act.

If the court does proceed should defence counsel withdraw?

If the court concludes that it will proceed in absence defence counsel must decide whether to continue to act. Helpful guidance (Absconding-Clients-What-to-do-if-your-defendant-has-absconded) has been provided by the Bar Council to assist in this decision. One can also call the ethics helpline. Where a lay client has absconded, there is a presumption that counsel will continue to act as instructions are not automatically deemed to have been withdrawn. As a rule, the more instructions that have been provided by the lay client, the more likely it is that counsel should continue to act. In practice this usually boils down to whether a signed Defence Case Statement has been provided, and defence counsel will usually withdraw if it isn’t signed. However, the lay client may have approved the statement by some other means or provided instruction as to its contents even if the final draft is unsigned. Further, counsel can look to other sources of instructions such as a signed proof of evidence. The extent of the client’s instructions should be discussed with the solicitor to decide whether enough instructions have been provided. In the absence of a signed proof of evidence a full comment interview that has been agreed by the lay client is another source of instructions. However, in the absence of all three, counsel may withdraw. In coming to this decision counsel should consider their duty to their client as well as their duty to the court: continuing to act provides an important safeguard against unfairness in the proceedings and assists in the administration of justice. Also, the Defendant is likely to be in a worse position without representation even if instructions are limited. What must not be overlooked is that should counsel remain they can test the evidence. Whatever is decided it is right to say it is a matter of professional discretion and no criticism can be levied if defence counsel choose to withdraw. That said, the extent of the disadvantage to the Defendant in not being able to present his account of events (because he is unrepresented) seems to be the most significant factor the court considers when deciding whether to proceed in absence. Proceeding in absence when the defence withdraw is commonplace in the Magistrates’ Court. It is more exceptional in the Crown Court, given that there is an automatic right of appeal in the lower court which does not exist in the Crown Court. That said, situations where applications are made are common, so familiarity with the rules and procedure will stand one in good stead when the need arises.

This article is written by Laura D’Alessandro barrister in the Criminal Team at Colleton Chambers for information only. It does not constitute legal advice. Solicitors wishing to instruct Laura for advice or advocacy please contact her clerk, Nikkie Browning, by e-mail or phone 01392 274898 (Option 2).

14 January 2025

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