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Neutral Citation Number  EWCA Crim 2383
IN THE COURT OF APPEAL
Royal Courts of Justice
London, WC2A 2LL
Friday, 8 September 2017
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE HOLGATE
SIR KENNETH PARKER
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R E G I N A
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Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd trading as DTI,
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Mr G Hepburne-Scott appeared on behalf of the Appellant
Mr R Merz appeared on behalf of the Crown
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J U D G M E N T
LORD JUSTICE SIMON:
- On 9th March 2017 in the Crown Court at Lewes before His Honour Judge Gold QC and a jury, the appellant was convicted in his absence of a single count of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861 and sentenced to a term of imprisonment. He appeals by his counsel against conviction under an implied authority with the leave of the single judge.
- On 6th April 2015 there was an incident in a Brighton nightclub during which the victim, Ian Pointer was struck on the head by a tall man he had noticed earlier in the evening. He did not know this man and was at a loss to explain why the man had struck him. He sustained a two-inch cut to his head and believed he had been struck with a square glass object. He subsequently identified the appellant as the man who had struck him. The friends he had been with failed to identify the appellant as the assailant.
- CCTV images were recovered which showed a tall man grappling with security staff before escaping. This man could be seen wearing a watch which was missing in later images. A Rolex watch was recovered from the scene by police on which the appellant's DNA was present. He made no comment in interview on 13th May 2015 and he did not attend his trial.
- The prosecution case was that the appellant was the victim's attacker. It relied on Mr Pointer's positive identification, together with the presence of the appellant's DNA on the watch. The CCTV was also relied upon in relation to the presence of the watch on the appellant's wrist. The prosecution further relied on the appellant's bad character - two convictions for offences of violence. No evidence was called by the defence.
- The issue for the jury was whether they could be sure that the appellant was the man who struck the blow to Mr Pointer.
- Mr Pointer told the jury that he was on a night out with two friends, Craig Fryer and Greg king. He had noticed a group of two men and two women standing close to them at the bar. One of the men was very tall, of Mediterranean appearance, in his mid-thirties and smartly dressed. There was no issue between them and no words were exchanged, but some time later he felt a blow to his head. The blow had been delivered by the smartly-dressed man. He fell to the floor and did not remember much thereafter. He had consumed four to five bottles of beer but was not affected by drink. One of the women in the group had come over and apologised. He had seen an item in the man's hand as he delivered the blow, something square and made of glass. He had never seen the man before and he reiterated that the man was noticeable because of his height.
- On 22nd May he had attended a video identification procedure and had positively identified the appellant as his assailant. In cross-examination he accepted that he did not know the man and had no cause to speak to him. He had seen the man for a few seconds but was 95 per cent sure of his identification.
- Craig Fryer gave a similar description of the tall man. At one stage he had seen this man striking a form of karate pose which had seemed strange. Later, from the corner of his eye, he saw the man make an over-arm motion and Mr Pointer "go down". He subsequently saw something on the floor which was possibly a candle holder and which he gave to the police. The tall man went to the exit and was grabbed by a doorman but got away. The whole incident had taken 15 to 30 seconds. In cross-examination he said he might have asked the man where his shoes had come from, although he had not recalled any reaction to this. In hindsight he thought it might have caused difficulty. He had not been 100% sure of the identification procedure and had been unable to gauge a height from the photographs. As he was not 100% sure he was not prepared to make an identification.
- Greg King gave a similar description of the tall man. He said this man appeared to be showing off and this made him feel uneasy. He had not seen the incident involving Mr Pointer but saw a man grappling with bouncers. The man had thrown them off and ran out. In cross-examination he said they had been to a number of pubs. He agreed that he had not identified the appellant at the identification procedure.
- DC Grimes confirmed that a Rolex watch had been seized. He also confirmed that the appellant gave a no comment interview on 13th May. He had previous convictions for inflicting grievous bodily harm from 2010 and assault occasioning actual bodily harm in 2012. There was evidence before the jury that the appellant's DNA was found on the Rolex watch. That link had been established on 28th May 2015, some days after the interview, and the appellant had not been asked about it.
- The defence statement was to the effect that he had sold the watch earlier but as Mr Hepburne-Scott points out, this could not be advanced at the trial.
- Mr Hepburne-Scott said that he might have been in a position to prepare a short prepared statement dealing with this. However, it is fair to point out that the appellant was asked in interview about the watch and did not say he had sold it three weeks before, as the defence statement suggested. Indeed, as we have pointed out, he did not say anything in interview. CCTV images showed the assailant wearing a watch before the incident and the watch missing after it.
- We turn then to the first ground which relates to the ruling that the appellant be tried in his absence. On 7th March 2017, the day before the date fixed for trial, the prosecution applied that the appellant be tried in his absence in circumstances where he had not been in contact with the police pursuant to his bail conditions since November 2016. The Crown submitted that he had been warned at the plea and case management hearing that he might be tried in his absence if he failed to attend for trial and he had been notified that the case was a fixture for the week beginning 6th March. In these circumstances, submitted the prosecution, he should be tried in his absence. Mr Merz outlined the evidence against the applicant of bad character and identification, as well as the fact that one witness had already been lost as he had gone to South Africa without leaving contact details, there having been an unsuccessful application to adduce his evidence under section 116 of the Criminal Justice Act 2003.
- Prosecuting counsel referred to the cases of Haywood in the Court of Appeal and Jones in the House of Lords, to which we will come later in this judgment. Defence counsel had indicated that he felt able to represent the appellant on the instructions he had. The right to be present could be waived by the accused in circumstances that included voluntarily absenting himself when he knew where and when his trial was to take place. The appellant had a bail condition of residents at his parents' address but they did not know where he was. It was submitted that a trial judge had a discretion as to whether a trial should continue in the absence of the accused, although the discretion had to be exercised with great care. It was recognised that only in a rare and exceptional case should it be exercised in favour of a trial taking place, particularly where the accused was unrepresented. Fairness was the primary consideration but fairness to the prosecution also had to be taken into account. The case was an old one and one witness had already been lost. The remaining witnesses were showing signs of disquiet at being constantly warned to attend. The appellant had absented himself from the trial and it was argued in doing so he had waived his right to be present. It was not known whether if the matter were adjourned the appellant would ever attend. The police had been looking for him since November. It was not known how long any adjournment might be. As to whether he wished to be represented, it was assumed that he wanted to be represented. The defence would be able to challenge the correctness of the identification but it was accepted it would not be able to put forward an alibi that had been raised in the defence statement. The prosecution acknowledged that there was also a difficulty in relation to the watch, as he had given no explanation for it. In his defence statement he said he sold it about three weeks before the incident, but the defence would not be able to put that in evidence before the jury. The Crown recognised that the defence would be at a disadvantage in not being able to give this account. The jury could be properly directed to avoid improper conclusions being drawn from his absence.
- Having regard to all these factors, the Crown contended that it was right for the trial to take place in the appellant's absence. We note that Mr Merz's submissions followed closely the criteria established in Haywood and Jones and the points he made were both in favour of the application and against.
- Mr Hepburne-Scott, who appeared for the defence, conceded that the appellant was aware of the trial date. However he pointed out that in was only in a rare and exceptional case that a trial should proceed in the absence of a defendant. The defence faced evidential difficulties and there were aspects of the case in respect of which no evidence could be put before the jury. This placed the appellant at a fundamental disadvantage. His "no comment" answers in interview was another feature which placed him at a disadvantage. The applications in relation to hearsay and bad character also raised difficulties for the defence. Counsel only had basic instructions and would be unable to call alibi evidence, although it was recognised that alibi had not been raised in interview.
- The importance of a trial being held within a reasonable time of the alleged offence and the issue of delay ought not to count against him as the delay had been caused by the court; and although it was his fault that he had not attended the hearing of the case had been delayed through no fault of his.
- Having heard these submissions, the judge ruled that the trial should proceed in the appellant's absence. He was satisfied that the appellant was aware that the trial was to take place and had absented himself in breach of his bail conditions. Having considered the criteria in Jones and the submission on each side, the judge expressed himself quite satisfied that it was a proper case to be tried in the appellant's absence.
- This ruling gives rise to the first ground of appeal, although Mr Hepburne-Scott stresses that the grounds are cumulative and must be taken both individually and together. He submits that the judge erred in allowing the case to proceed in the appellant's absence in circumstances where he was placed at a significant disadvantage if the case went ahead. The relevant circumstances being first his having given a no comment interview, and second, his not having had an opportunity to comment on the DNA evidence.
- For the Crown, Mr Merz submits that the judge was referred to and applied the criteria established by the cases of Haywood and Jones. It was a matter for his discretion and he exercised his discretion appropriately. In particular the appellant had chosen not to respond to questions relating to the evidence against him. He was entitled to do so, but he was warned that it might have consequences if he later mentioned something that he could have mentioned in interview. He had not been asked about the DNA evidence because it had not been available at the time.
- He was warned at the plea and case management hearing that if he did not attend he might be tried in his absence. In November 2016 he had stopped reporting to police and thereafter his whereabouts was unknown. At this time he was fully aware of the case against him and absented himself. It was his voluntary decision not to respond to questions in interview, to attend court or to give evidence. There was no reason to think he might attend at any future date if the trial were adjourned. The prosecution had already lost a witness who had identified the appellant at an identification procedure. He had left the country without leaving his contact details. The remaining witnesses were expressing discontent at the delay. Whilst no detailed reasons were given by the judge it could properly be inferred that having addressed the relevant principles he had found that it was in the interests of justice to have a trial in the appellant's absence.
- The principles to be derived from Haywood  QB 862 and Jones  1 AC 1, are conveniently summarised in Blackstones Criminal Practice 2017, D15.86-87. So far as material to the present appeal, they can be summarised as follows. (a) A defendant has a right to be present at his trial and be legally represented. (b) Such rights can be waived separately or together, wholly or in part, by the defendant. They may be waived if knowing or having the means of knowledge as to when and where his trial is to take place he deliberately and voluntarily absents himself. (c) The trial judge has a discretion as to whether the trial should take place in the absence of a defendant. (d) That discretion must be exercised with great care and it is only in rare and exceptional cases that it could be exercised in favour of a trial taking place, particularly if the defendant is unrepresented. (e) In exercising that discretion fairness to the defence is of prime importance. But fairness to the prosecution must be taken into account. The judge should have regard to all the circumstances of the case, including in particular, in the present case: (1) the circumstances in which the defendant absents himself, such as whether his behaviour is deliberate, voluntary and such that he plainly waived his right to appear; (2) whether an adjournment might result in him attending his trial; (3) whether, although absent, he can be taken to wish to be legally represented; (4) if so the extent to which the legal representative is able to put forward a defence; (5) the extent of the disadvantage to the defendant in not being able to give his account, having regard to the nature of the evidence against him; (6) the general public interest and the particular interest of alleged victims and witnesses that a trial take place within a reasonable time of the events to which it relates; (7) the effective delay on the memory of witnesses. (f) If the judge decides that a trial should take place he must ensure that the trial is as fair as the circumstances permit. He or she must in particular take reasonable steps both during the evidence and in the summing-up to expose any weaknesses in the prosecution case and make such points on behalf of the defendant as the evidence permits. In summing-up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.
- The fact that these factors may point to different conclusions, for example what we have characterised as principle e (5) on the one hand and e (6) on the other, emphasises that the judge is necessarily exercising a discretion, weighing up the factors in favour and against a trial in the defendant's absence, as is made clear from principle c. Furthermore, it is clear that proceeding in the absence of an entirely unrepresented defendant is plainly less desirable than proceeding where the defendant is represented and has provided instructions. Equally the fact that the defendant has had an opportunity of providing answers to questions in interview, will militate in favour of a trial notwithstanding his absence.
- It is unfortunate that the judge confined his reasoning to four lines of transcript. On the other hand, Mr Metz had set out in detail points both in favour and against an adjournment by reference to the Haywood and Jones principles; and it is clear that the judge must have accepted the prosecution's submissions and regarded the defence submissions as of insufficient weight to weigh the balance against those points. The appellant had plainly waived his right to attend his trial. He knew when the trial was due to take place. He absented himself and in doing so breached his bail conditions. He is still at large. This was not a case in which a short adjournment would have resulted in him attending his trial. It is therefore clear now, if not clear then, that the consequences of an adjournment would be no trial or a trial involving delays to the grave prejudice of the prosecution and the witnesses. He was represented by competent counsel who has addressed us today shortly but effectively. Counsel was able to put forward those points at trial which could properly be put forward in his defence. There were difficulties caused by the no comment answers to questions put in interview but those difficulties would not have evaporated if he had attended his trial.
- As the single judge observed, the strongest point in favour of the appeal is the fact that the prosecution relied on DNA evidence which had not been available when the appellant was interviewed, so that the significance of the evidence had not been addressed in interview and could not be addressed by his evidence at trial. However, as we have noted, he was specifically asked about the watch and gave no comment answers. He gave an explanation for the DNA findings in his defence statement but it was not something which could be put before the jury on his behalf unless he gave evidence. However, as we have noted, he was specifically asked about the watch and gave no comment answers. Furthermore, he was asked what he would say if his DNA was found on the watch; and his response was 'no comment'.
- Despite this point we are not persuaded that it was unfair for the trial to proceed in the appellant's absence. A test of rarity and exceptionality is not easy to apply in an individual case but it provides a salutary warning against the development of any habitual practice. On the present facts we are satisfied that the judge came to a decision that was open to him in the circumstances of the case and accordingly we reject ground 1. We would add that it is hardly in the overall interests of justice if a defendant having given no comment answers in interview was able to rely on this as the foundation of an argument he should not be tried in his absence.
- As we have noted, only Mr Pointer positively identified the applicant as his assailant. It is this fact that underlies the complaint in ground 2. When the judge came to the identification evidence he gave an appropriate direction on how the jury should approach his identification (see Turnbull  QB 224) about which no complaint is or could be made. It is what he said after this that gives rise to ground 2.
- At 7H he said this:
"Please don't approach the case on the basis that because only one out of three witnesses picked him out on the identification parade that you only have a one third identification. That obviously would not be a sensible approach. I am sure you will readily understand that when people witness a crime they may get differing views of the person alleged to have committed the offence. They may have differences in recollection. There may be different periods of time between the incident and the identification parade and they may simply just not be as good at retaining the facial features of someone as another witness so the fact that two witnesses didn't pick him out does not assist the defence, it is entirely fact neutral. It does not mean that Mr Pointer's evidence of this defendant being the assailant and picking him out on the parade is more or less likely to be right."
- Mr Hepburne-Scott submits that this passage unfairly minimised a point that the defence was entitled to make; namely, that two out of the three eyewitnesses had failed to identify the appellant and the one who did had said he was only 95 per cent sure it was him.
- We accept that this passage might have been understood to lessen the defence point that two out of the three eye-witnesses had failed to identify the appellant as the assailant; but we believe the point that the judge was making was that the failure of Mr Fryer and Mr King to identify the appellant did not undermine the identification of Mr Pointer who was the person most directly affected by the assault. When he summarised their evidence he made the point that they had not identified the appellant and, in the case of Mr Fryer, gave the reasons for it. No doubt the point was also made in the defence closing speech to the jury. We would accept that the passage from the summing-up might have been expressed more felicitously but it was not unfair and it did not in our view amount to a material direction such as to render the conviction unsafe, nor did it constitute an infraction of principle (f) to be derived from Haywood and Jones.
- We turn then to the final point which arises from the single judge's observations when giving leave on grounds 1 and 2, that the summing-up on the appellant's bad character was "unusual". It is unnecessary to recite the relevant passages in the summing-up (page 8H to 9G). The passage referred to the appellant's previous convictions as "background". In our view that was not a proper approach to the direction on bad character. In the context of the present case the relevance of his previous convictions for violence was his propensity to commit acts of violence and there was no good reason not to use the word "propensity". A proper direction on bad character should cover three material points: (1) A clear warning against placing undue reliance on the previous convictions; (2) Emphasising that evidence of bad character cannot (a) be used to bolster a weak case, or (b) prejudice the jury against him; and (3) Directing the jury that they should not infer guilt from the existence of conviction. Unfortunately, and it is unclear why, the judge did not avail himself of the guidance in the Crown Court Compendium on bad character. If he had done so he would have avoided what we regard as a single omission. Although diffuse, the direction covered all these points other than point 2 (b). Nevertheless, in the circumstances, and read as a whole, we are satisfied that although there was a misdirection it was not a material misdirection, nor did it constitute a breach of principle (f) to be deprived from Haywood and Jones.
- In conclusion, neither individually nor collectively do these three points give rise to a doubt about the safety of the conviction, and for these reasons we dismiss the appeal.
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