ABSENCE

The bar in the Criminal Justice Act 1982 s.72 on defendants making unsworn statements did not preclude a defendant’s account of events being given by way of hearsay evidence under the Criminal Justice Act 2003 s.114 and s.116.

[2017] EWCA Crim 273

The court set out the correct law in relation to the application of the slip rule under the Powers of Criminal Courts (Sentencing) Act 2000 s.155. After imposing a sentence on the basis of a factual error, a judge had been entitled to increase the sentence under the slip rule despite initially indicating that he would not do so. An indication by the Attorney General that he intended to refer the sentence to the Court of Appeal as unduly lenient was a relevant consideration.

[2017] EWCA Crim 226

There had been sufficient evidence of joint enterprise on a count of arson being reckless as to whether life was endangered. Witnesses had given evidence that the defendant and his co-accused had left the scene together arguing and were arrested together shortly afterwards. Whether the evidence established an agreement between them was a matter for the jury.

[2016] EWCA Crim 1302

A fitness to practise committee of the General Pharmaceutical Council had been entitled to remove a pharmacist from the register of pharmacists after she had received a caution for fraud by false representation. In any case involving dishonesty in disciplinary hearings, non-attendance amounted virtually to courting removal. Disciplinary bodies should forewarn defendants, not just that a hearing might proceed in their absence, but also that the consequences of non-attendance were likely to be severely prejudicial.

[2016] EWHC 1050 (Admin)

A magistrates’ court had been wrong to refuse the Crown’s application for an adjournment where its witnesses had not attended because it had been informed that the trial was listed for pre-trial review and not for trial. The court had not enquired about whether it would have been possible to re-fix the trial date shortly afterwards.

A judge had been entirely correct in determining that an elderly motorist who had been convicted of causing death by dangerous driving was fit to plead where the two medical experts instructed took divergent views on the issue. The judge’s conclusion that the criteria in R. v Pritchard 173 E.R. 135 were met on the evidence of the medical expert he preferred, was a conclusion he was entitled to reach.

[2015] EWCA Crim 1308

A Crown Court’s decision to award a taxi driver costs as he had suffered substantial financial hardship where a local authority had suspended his licence after complaints concerning his driving but none of the complainants had attended a court hearing could not be criticised, and the local authority should have realised that its original decision to suspend the licence was unsustainable in light of that.

Although a judge had erred in applying the incorrect, higher, criminal standard of protection when refusing a defendant’s application for adjournment of civil recovery proceedings under the Proceeds of Crime Act 2002 Pt 5, the proceedings had been conducted fairly for the purposes of the European Convention on Human Rights 1950 art.6(1) and the overriding objective.

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[2014] EWCA Civ 171

A magistrates court had not acted unreasonably in adjourning a trial on the basis that the case would not be completed within a day due to the late attendance of prosecution witnesses and the defendant’s late application to adduce bad character evidence.

The failure to produce a defendant in court because of an error in the administrative process was capable of amounting to an “accident” within the meaning of the Magistrates’ Courts Act 1980 s.129(1), so as to entitle magistrates to exercise their discretion and remand her in custody in her absence.

A district judge erred in refusing to re-open an offender’s convictions for driving offences and to adjourn sentencing him in his absence where there was medical evidence that he was unfit to plead or attend court. The judge gave no reasons for taking the exceptional course of proceeding to sentence the offender in his absence in circumstances where there was medical evidence in support of an adjournment which could not be said to be spurious.

[2012] EWHC 3864 (Admin)

In confiscation proceedings, where the defendant had been unable to attend due to chronic illness, in all the circumstances, he had had a fair hearing as his case was sufficiently before the court to allow an assessment.

[2011] EWCA Crim 1198

A magistrates’ court had acted unfairly in dismissing an information laid by a local authority for want of attendance by a prosecutor where the trial was not pre-fixed but had been occasioned through the execution of a warrant and where the court had made no attempt to contact the prosecutor, who had been on her way to court.

[2011] EWHC 432 (Admin)

Although the Proceeds of Crime Act 2002 did not preclude a court’s power to allow confiscation hearings to continue absent the defendant, courts were never to exercise that power where the action of the state had caused the absence.

[2010] EWCA Crim 2727

A magistrates’ court should not have proceeded in the defendant’s absence when she had provided a medical certificate and the court had given no indication of why it considered the medical grounds stated therein to be spurious.

[2010] EWHC 2108 (Admin)

Reluctance of a witness to testify was not a sufficient basis for invoking the Criminal Justice Act 2003 s.114.

[2010] EWCA Crim 1997

A trial judge had a discretion to comment on the absence of evidence from witnesses who did not appear, provided that he did so fairly and was aware of the danger of adverse comments, in particular of the danger of failing to warn the jury not to speculate about the evidence of absent witnesses.

[2010] EWCA Crim 342

A magistrates’ court’s failure to inquire as to why an accused was late for his trial or consider an adjournment rendered its decision to proceed with the trial in his absence unlawful, as the accused did not have a fair trial.

[2009] EWHC 1500 (Admin)

Where reasonable steps had been taken to contact defendants who had absconded and it was unlikely that anyone would attend court and make representations for them, confiscation orders in relation to drug trafficking could be made against them in their absence.

[2009] EWHC 421 (Admin)

A magistrates’ court had erred in determining that an accused, by his behaviour, had deliberately absented himself from his criminal trial and that it was appropriate to proceed with the trial in his absence.

[2008] EWHC 1157 (Admin)

A judge had erred in failing to adjourn a trial for a week in circumstances where a prisoner had failed to attend court for his trial and there was conflicting evidence as to whether he had absented himself voluntarily.

[2008] EWCA Crim 620

A witness statement was not admissible under the Criminal Justice Act 2003 s.116(2)(d) as reasonably practicable steps had not been taken to find the witness. It was not sufficient to call the witness on the last working day before the trial and leave a message.

[2007] EWCA Crim 3025

A hearing of an appeal against sentence had not been properly and fairly disposed of in the offender’s absence and it had not been open to the Court of Appeal on the evidence to conclude that the offender had known of the hearing date and deliberately absented himself or that he had deliberately made it impossible to notify him in advance.

[2006] UKPC 56

An appeal to the Criminal Division of the Court of Appeal had been determined for the purposes of the Supreme Court Act 1981 s.55 when the judgment had been approved by all members of the court and released to counsel, and it did not matter that one of the judges was not present when the judgment was handed down.

[2006] EWCA Crim 2000

Magistrates who had refused to adjourn a trial because the Crown had told its witnesses the wrong starting time had adopted a proper approach to the exercise of their discretion.

[2006] EWHC 1108 (Admin)

A magistrates’ court had erred in granting a renewed application for an adjournment of a criminal trial where there was no change in circumstances since the previous application for an adjournment which had been refused.

[2005] EWHC 905 (QB)

Where an applicant on a renewed application to the full court for leave to appeal against sentence was, in his absence, granted leave and his sentence was reduced, the Court of Appeal considered the circumstances in which the matter could be relisted for reconsideration in his presence.

[2005] EWCA Crim 1090

Where an applicant for a writ of habeas corpus was absent from court on the listed hearing of his application, his application was dismissed without recourse to the merits of the case on the grounds that he had failed to appear to pursue his claim.

[2005] EWHC 109 (Admin)

The Crown Court had exceeded its jurisdiction by refusing to hear an appeal against conviction on the basis of non-attendance by the appellant where counsel was present, and was obliged in those circumstances to hear any such appeal even where there was a legal duty on the appellant to attend.

[2003] EWHC 73 (Admin)

In order to establish an the offence of aggravated trespass contrary to s.68 Criminal Justice and Public Order Act 1994, it was necessary to prove that the defendant had committed the act or acts complained of in the physical presence of a person engaged or about to engage in the lawful activity with which the defendant wished to interfere.

[2001] EWHC Admin 821

In a case where there were unusual circumstances, a district judge who did not take certain factors into account was not entitled to refuse adjournment or a substitution of charges.

[2001] EWHC Admin 492

A prisoner maintained three main rights whilst in custody: (i) the right of access to a court; (ii) the right of access to legal advice; and (iii) the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. These rights could only be curtailed by clear and express words and then only to the extent reasonably necessary to meet the ends which justified the curtailment. A policy allowing prison staff to search a prisoner’s legally privileged correspondence in his absence could not stand.

[2001] UKHL 26