O'Hare, R v

B e f o r e :

LORD JUSTICE THOMAS MR. JUSTICE McCOMBE and JUDGE STEWART QC (Sitting as a Judge of the Court of Appeal Criminal Division) ____________________

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Pamela Rose (assigned by the Registrar) for the Appellant Marcus Fletcher (instructed by Crown Prosecution Service) for the Respondent Hearing dates : 13 December 2005 ____________________

HTML VERSION OF JUDGMENT ____________________

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Lord Justice Thomas :

On 23 January 2004 between 10:30 pm and 11:00pm Robert Ford was robbed at knife point by three men in Preston Circus in Brighton. During the course of the robbery the victim's Nokia 3310 mobile phone, Lloyds /TSB cash card, £11 in cash and a bottle of red wine were taken. The appellant, Stephen Lawlor and a third man, Patrick Burke, were stopped by police in the vicinity of the robbery and a knife was found nearby.

They were charged with robbery, but the case against Burke was discontinued.

On 24 August 2004, the appellant should have attended for trial for the robbery at Lewes Crown Court before HH Judge Richard Brown DL and a jury; Lawlor did attend, but the appellant did not. The trial proceeded in the appellant's absence. On the following day 25 August 2004, the appellant and Lawlor were convicted of robbery. Lawlor was sentenced to 8 years imprisonment and the appellant was sentenced to 6 years detention in a Young Offenders Institution.

0n 29 January 2005 he was arrested in Wales on his return from Ireland. On 1 February 2005, he appeared before Judge Richard Brown and an explanation was given for his absence, as we set out below at paragraph 27. He was sentenced by HH Judge Brown to 3 months imprisonment for failure to surrender to custody at the appointed time; that sentence was made concurrent to the sentence of 6 years.

He appeals against his conviction by leave of the single judge who referred the application for leave to appeal against sentence to the Full Court.

Some information was not available to the Court at the hearing of the appeal; we therefore ordered the provision of that further information. It was duly provided to us.

The evidence at the trial

The evidence given at the trial can be shortly summarised.

The principal witness for the prosecution was the victim, Robert Ford, a student at University:

ii) His vision of the two men was not obscured; it was drizzling, but the lighting conditions were reasonable for the city.

iii) Both men demanded his property. He called out for assistance to the man who had been standing near the statue. However, this man revealed that he was in league with the other two by punching him in the head. He described this man (man number 3) as slightly younger than the other two, of thinner build but of similar height to himself. He said that all three had Irish accents.

iv) Man number 2 made most of the demands but at some stage man number 1 and man number 2 threatened him with the knife. Man number 3, who he thought was acting as a look out, delivered gratuitous blows to his head as did the other two. The men ran off after they had obtained his (albeit incorrect) PIN number for his bank card, money, mobile phone and the bottle of red wine. He rang the police who arrived 10 minutes later.

v) He attended at a video identification procedure on 10 March 2004.

The police officers gave evidence that they found three men in the vicinity of where the robbery had taken place 10 minutes or so after the robbery. Two of these were Lawlor and the appellant who were both drunk and smelt of alcohol. The appellant was found to be in possession of a knife sheath, the bottle of red wine purchased by the victim and the victim's mobile phone, the latter being found in his jacket. A knife was found close to where the police had first seen the three mean. In his police interview the appellant gave no comment responses to all questions put to him.

In his police interview Lawlor said that he was innocent; that no items from the robbery had been found on him and that he did not know the other men arrested with him. Thereafter, he gave no comment responses. Lawlor, who was 31 years of age, gave evidence at the trial. He said that on the evening of the robbery he had left his room to go to McDonald's and although he had taken some alcohol earlier in the day he was sober. After leaving McDonald's he crossed the road and was stopped by a police officer, he was not, at that stage, with anyone else, but was aware that at the time of his arrest another person was being walked to a police car. He said that he had not committed the robbery and had never before seen the two men arrested with him.

The events prior to the trial can be summarised as follows:

ii) The appellant made a bail application on 5 February 2004 to the Crown Court at Lewes which failed. He applied to the High Court; his application was not opposed by the prosecution. He was granted bail by the High Court on 23. March 2004, with reporting and residence conditions.

iii) A plea and directions hearing took place on 16 April 2004. The appellant and Lawlor attended and pleaded not guilty. The matter was placed in the warned list for 21 June 2004.

iv) On 5 May 2004, the appellant served a defence case statement in which he denied that he had been involved. He had met the other two when out drinking. His knife had been taken by Mr Lawlor prior to the robbery to look at it. He did not know the other two were going to rob Mr Ford. He asserted that the jacket in which the stolen items were found was not his, but in fact belonged to Lawlor; they had swapped jackets and Lawlor had given him the bottle of wine. An extensive disclosure request was made on his behalf.

v) On 21 June 2004, the court received a letter from the appellant's solicitors seeking a mention hearing as the appellant had "failed to attend numerous appointments."

vi) The matter was listed for 25 June 2004. The appellant failed to attend and a warrant not backed for bail was issued.

vii) On 29 June 2004 there was a further hearing; Lawlor was anxious to have his case heard. His custody time limit expired on 26 July 2004

viii) The matter was listed for trial on 13 July 2004 at Chichester Crown Court. The appellant again failed to attend. It was believed that he had absconded to Ireland; the Garda were informed and asked to make enquiries. Although Lawlor's legal team were anxious to proceed with the matter, the case was stood out at the request of the appellant's representatives so that both men should be tried together. The Judge reluctantly decided that the trial should not proceed that day and directed that the matter be mentioned before Judge Richard Brown at Lewes, as Resident Judge, on 20 July 2004.

ix) On 20 July 2004, Judge Richard Brown directed that the matter come before him on 23 July 2004 for consideration of the question of whether the appellant should be tried in his absence.

At the hearing on 23 July 2004, counsel for the appellant (who represented the appellant in this court) put forward, as best she could, all that could possibly be said on the appellant's behalf as to why he should not be tried in his absence. The judge was referred to the decision in Jones in this Court (reported as R v Hayward, Jones and Purvis [2001] EWCA Crim 168 ) and in the House of Lords (reported as R v Jones [2002] UKHL 5 ), and the Practice Direction issued by the Lord Chief Justice on 8 July 2002 by Amendment No.3 to the Consolidated Criminal Practice Direction (Bail, Failure to Surrender and Trials in Absence), to be found in the Consolidated Practice Direction at paragraphs I.13.17-19.

In a very clear ruling, the judge held that the trial of both Lawlor and the appellant should proceed together, even if the appellant did not attend.

ii) The appellant had voluntarily absented himself from the proceedings and in accordance with the principles as set out in Jones he had waived his right to be present.

iii) He had considered all of the factors set out in Jones. It was undesirable to have separate trials; in the appellant's defence case statement, the appellant claimed that the jacket he was wearing on arrest which contained some of the stolen items, in fact belonged to Lawlor. Lawlor, on the other hand, claimed no knowledge of the jacket or of the appellant. These were matters for the jury to consider when looking at the cases of both defendants together rather than in separate trials. Allowing the trials to proceed separately might in these circumstances confer a wholly unjustified advantage on the appellant which he had obtained by absconding. The system should not be open to manipulation in this way.

iv) The trial would therefore proceed whether or not the appellant chose to be present; if he was not, the jury would be given appropriate directions and told to consider the case for and against him on the available evidence.

v) More time would be given to the appellant's lawyers to make enquiries into the evidence, including consideration of the DNA evidence. That evidence (which the defence had requested to try and establish the jacket being worn by the appellant was Lawlor's) was not going to be available until the following week. He therefore directed that the trial proceed on 24 August 2004.

There was a further preliminary hearing, but nothing of relevance to this appeal occurred.

On the morning of 24 August 2004, before the trial commenced, the advocate for the appellant sought to reopen the ruling made by Judge Brown. The same submissions as had been made on 23 July 2004 were rehearsed, with the exception that the DNA evidence had been made available and was of no assistance to the appellant's defence.

It was common ground then and before us that if the appellant had attended his trial he would have advanced a defence.

The Judge refused the application in another very clear ruling which re-stated, more briefly, the reasons he had given on 23 July 2004. The judge then asked if the appellant's legal representatives were going to stay. Counsel explained that they would not; we set out the explanation given at paragraph 32 below. Solicitors and counsel withdrew.

In his summing up to the jury the Judge made very clear the approach the jury should take in the absence of the appellant. He reminded the jury of the case against the appellant and its weaknesses; he told them not to speculate as to why he was absent or what he might have said had he been present. They should not assume that his failure to attend in any way established his guilt; his absence proved nothing and they had to assess the evidence and satisfy themselves that the prosecution had made them sure of his guilt. Save on one specific issue relating to the evidence which we consider at paragraph 39 , no criticism is made of the summing up, nor could any possibly be made to the very careful approach of the judge to the absence of the appellant at his trial.

The applicable principles

It was accepted that the applicable principles are set out in Jones and the consolidated Practice Direction.

In this Court (where, as we have said it is reported as R v Hayward, Jones and Purvis) Rose LJ giving the judgment of the Court set out the following principles:

The court concluded at paragraph 41 of the judgment that one of the appellants, Jones, had waived his right to be present and to be legally represented. On appeal to the House of Lords, reported as R v Jones, the decision of the Court of Appeal was upheld. At paragraph 13 of his speech Lord Bingham referred to the principles set out by the Court of Appeal:

At paragraph 11, he had re-iterated the general principles:

The majority of the House agreed with Lord Bingham in the passage which we have cited that the Court of Appeal were correct in holding that the appellant Jones had waived his right to attend and to be represented. The minority, Lord Hoffman and Lord Rodger did not agree. In Jones, Lord Hoffman made clear that waiver required consciousness of the rights that were being waived; there was nothing to show that the appellants in that case had known that the trial would proceed in their absence if they did not turn up. Lord Rodger preferred to deal with the case on the basis that the appellant in that case had not unequivocally waived his right to be present:

The Consolidated Criminal Practice Direction provides:

The appellant's explanation for his absence

We first consider the appellant's explanation for his absence. It was accepted by counsel for the prosecution that if we accepted his explanation, then it would be strongly arguable that the trial should not have gone ahead in his absence. A statement by the appellant dated 9 February 2005 explaining his absence was made available to the court. An application was made on his behalf to give evidence in accordance with that statement. We decided in the interests of justice and in the overall fairness of the proceedings to hear that evidence.

The appellant's evidence can be summarised as follows:

ii) He was visited by three men in Brighton a few weeks after his birthday (21 April); they asked him if his name was O'Hare. All then punched him round the head and nose; he had a broken nose. They told him that he would not be allowed to give evidence; he would be harmed. They mentioned Lawlor's name. He was scared as to what would happen to him and took the threat seriously. Before that he had intended to attend his trial. He was sure that Lawlor had arranged this, as he would be giving evidence against Lawlor.

iii) He was so frightened that he then and there went to the station and went home to Ireland. He did not tell the police as that would amount to "grassing". He did not seek medical attention, as his nose was only slightly broken and he had had threats to his life. He did not seek medical attention in Dublin as it was then alright.

iv) He did not think of telling his solicitor; prior to that he had been in regular contact with his solicitors and trusted them. He did not contact them from Ireland as he did not have their phone number or any other way of contacting them. He had their address. His partner (who had had his child) had moved to Leeds; he maintained contact with her.

v) His uncles in Ireland found out though other travellers who it was who was threatening him; they sorted it out. He was not prepared to name his uncles as they would not like him to disclose their names and it had nothing to do with them; they had been in trouble and if he disclosed their names, he would be in trouble with them.

vi) He only returned to the UK when he was no longer in fear; he was arrested on the motorway on his way back to Brighton to give himself up; it was all sorted out and he could give evidence.

This account was in substance the same as that given to the court on 1 February 2005. In assessing his evidence we have taken into account his good character. We do, nonetheless, reject his evidence as untruthful. If he had been threatened and injured in the way claimed, he would have had to seek medical attention. He did not do so. Once in Ireland, there was no reason for him in the interval between the time he claims he was attacked at the end of April 2004 and the commencement of the trial in August 2004 for him not to have contacted his solicitor to explain the position. We are sure that he deliberately absconded as he was frightened of the prospect of conviction and the long prison sentence he would receive; the explanation of threats made to him was untrue.

We do not therefore need to consider the course this court would have taken if the appellant's evidence had been accepted. We therefore turn to consider the case on the basis that he had deliberately absented himself.

The appellant's contentions

On behalf of the appellant, it was contended that

ii) The issue in the trial was one of identification; it was prejudicial to have asked the jury to compare a photograph of the appellant with the description given by the victim, particularly where the appellant had not been picked out on an identification parade.

iii) There was no exploration of why the third man was not charged

Our conclusion

The exercise by the judge of his discretion to proceed with the trial

We consider that the judge exercised his discretion correctly on the information known to him:

ii) This was clearly a case where the defendants ought to have been tried together; if the appellant had been tried on his own, he would have gained the obvious advantage that Lawlor would not have been present to contradict his account that the jackets had been swapped.

The fact that this was a very serious offence made no difference; as Lord Bingham pointed out in the passages in his speech to which we have referred, the objective is to secure as fair a trial as the circumstances permit; the objects are equally important, whether the offence charged be serious or relatively minor. A judge of the Crown Court should not be reluctant to hear a case in the absence of the defendant merely because the charge is a very serious one.

The absence of legal representation

There can be little doubt that it would have been preferable, particularly in the light of the speeches in Jones if the appellant had been represented at the trial.

ii) The position of counsel is set out in the Bar Council's Rules of Conduct at section 15.3.1 and .2 of the Written Standards for the Conduct of Professional Work:

iii) The explanation provided to us by counsel who appeared for the appellant on 24 August 2004 (who was not counsel who had represented the appellant at earlier hearings and before us) was that he withdrew because the appellant's solicitors were withdrawing because they had insufficient instructions; as he had neither instructions from the solicitors nor from the appellant, he did not consider his presence would be of assistance.

In the light of these provisions and of the advice given to the solicitor, no possible criticism can be made of counsel or of the solicitor withdrawing. However this was a case, as will be many, where although the judge did carefully point out the weaknesses of the prosecution case, it would have been a clear additional safeguard to the fairness of the trial that if counsel or solicitors on the appellant's behalf had been present and ensured that all points that could properly be put forward in the absence of evidence from the appellant were clearly before the jury.

We must assume that these provisions must have been carefully considered by the Bar Council and the Law Society in the light of the speeches in Jones . Although we do appreciate the difficulties that legal representatives are put in if a client absconds, we consider that in the light of paragraph 15 of the speech of Lord Bingham in Jones and the circumstances of this case, that the Law Society and Bar Council should reconsider their rules of conduct. The attendance of legal representatives who had received instructions at an earlier stage provide, as Lord Bingham made clear at paragraph 15, a valuable safeguard and would, for the reasons we have given, have done so in the circumstances of the present case. We would hope that the Legal Services Commission would continue to fund representation in such circumstances, for the assistance of the court and in the interests of justice.

Waiver

No evidence was adduced before us as to what the practice at Lewes was as to warning a defendant who was granted bail that a trial might proceed in his or her absence if he or she did not attend. In view of the observations of this court in Jones at paragraph 23, it might have been thought unnecessary. We hope that position will now be reconsidered and it be made clear to each defendant that if he fails to attend a trial, the consequences may well be that the trial will proceed in his absence and without legal representation. An analysis of the speeches in the House of Lords points to the conclusion that, if waiver is to be established, then knowledge of, or indifference to, the consequences of being tried in his absence and without legal representation would have to be proved. A direction to the defendant (of the nature suggested) upon the grant of bail as the provision to the defendant of a written statement (to the same effect) would, we think, generally provide an incontrovertible means of proof.

We have taken into account that the appellant was 18 at the time. Nonetheless we are sure that the appellant appreciated that by absconding the trial was likely to proceed in his absence. As he made no attempt to contact his solicitor from Ireland, he plainly appreciated that his solicitor would be unable to put forward a case on his behalf at trial and arrange representation for him. In those circumstances, we consider that the appellant waived his rights.

The fairness of the proceedings

However, we do not base our decision solely on waiver. We have considered whether in all the circumstances, in the light of what is known to this court, whether the whole of the proceedings, including the proceedings in this court, were fair and in conformity with Article 6.

We accept that the appellant's defence was not before the jury; he was not, as we have been told, able to contradict Lawlor's account or explain his possession of the mobile phone. That was, however, a consequence of what we have found, after hearing the appellant's evidence, a deliberate decision to abscond; in this court, the appellant has had a full opportunity to put forward his explanation. No unfairness, taking the proceedings as a whole, can therefore result from any consequence of his deliberate decision to abscond, which after hearing his evidence, we concluded is what happened. He cannot having taken that course impugn the fairness of the trial on the basis that it might have followed a course different to that which it would have followed if he had been present. For example, as we have set out, it was his case that his possession of the victim's mobile phone was explained by the fact that Lawlor had swapped jackets with him; he sought to support this by reference to the custody record. However his evidence and further instructions to his solicitors were essential to making this case; by absconding, he deprived himself of the opportunity of doing so.

We have also considered the contention made that the judge erred in his summing up to ask the jury to compare the description of the appellant with a photograph of the appellant. There was no error. The judge pointed out to the jury the fact that the appellant was not picked out on the identification parade; they were asked to consider the description given by the victim against a photograph of the appellant taken immediately after the arrest to see if that would rule out the appellant.

There was very strong evidence against the appellant as we have set out. He had a fair trial and in this court we have given him a full opportunity to explain his absence. We are therefore sure that the conviction was safe and the proceedings, taken as a whole, entirely fair and in compliance with Article 6.

The appeal against sentence

Because the appellant had voluntarily absented himself, the judge could not obtain a pre-sentence report which he might well have done in view of the appellant's previous goof character and youth, despite the inevitability of a custodial sentence. The judge in passing sentence took into account his previous good character and the fact that he was younger than Lawlor, but sentenced, as he rightly stated, on the basis of the seriousness of the offence and the fact that the public were entitled to be protected from attacks such as this. The judge made clear that this type of robbery was becoming increasingly prevalent and this was a particularly serious example, as the victim had been attacked by three people and had had a knife held to his throat.

It was contended on behalf of the appellant that his absence had meant that there was no pre-sentence report, no mitigation and no chance for him to address the respective roles of those involved. He had not been able to put forward character witnesses.

On the hearing of the appeal, we considered that given the appellant's previous good character, it would be just to obtain a report from the probation service. We therefore directed that such a report be provided and that the appellant provide any submissions on it in writing.

The report sets out that the appellant continued to deny his participation in the offence, though he accepted that he was present and had provided the knife to Lawlor, as he carried a knife for his own protection because he had "dodgy" friends. He was assessed by the probation officer as having a high risk of re-offending. Whilst he has been in prison, he has participated in various educational courses, including GCSEs, but has been the subject of a Governor's adjudication for criminal damage.

It was submitted to us on his behalf that he had the substantial mitigation of his previous good character, a difficult childhood as his parents had been killed and he had a young child; the offence was out of character. Lawlor had as the judge pointed out a very bad record as he had a very large number of previous convictions in this jurisdiction and in Ireland; he had been sentenced on 30 April 2004 to 4 years imprisonment for robbery and attempted robbery and was at the time of the commission of the offence under licence, having been released from the custodial part of the sentence on 31 December 2003, a matter of weeks before the commission of the offence.

In the circumstances, having regard to the appellant's previous good character, the matters set out in the report and his youth, we consider that the sentence of six years was too high in the light of the information now before the court. We grant leave to appeal against sentence, quash that sentence and substitute for it a sentence of five years imprisonment. To that extent only is this appeal allowed.