In July this year, Jack Shepherd was convicted at the Central Criminal Court of gross negligence manslaughter arising out of the high-speed crash of a speed boat on the River Thames (prosecuted by Aftab Jafferjee QC).

Shortly before the trial was due to commence the defendant informed his legal team that he was not going to attend his trial and, indeed, when the case was listed he failed to appear. It seems that both defence solicitors and counsel were as surprised by this development as anyone else. Before the defendant absconded he had provided instructions and they did not feel compelled, as frequently happens, to withdraw.

The prosecution then made an application for the trial to proceed in the defendant’s absence on the basis that, by notifying his lawyers of his intention not to attend, he had clearly ‘voluntarily absented himself’. Part 25 of the Criminal Procedure Rules, which governs applications for trial in absence, states:-

R25-2 (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.

The first hurdle that the prosecution had to clear was to establish whether at the plea and trial preparation hearing (PTPH) the defendant had been warned that if he failed to attend (or, if in custody, refused to leave his cell) his trial might proceed in his absence.

Part 72 of the PTPH form (in which ‘Judicial Warnings’ are to be recorded as having been given) had been left blank and neither counsel appearing at the PTPH had made any independent note or endorsement that it had. The court DART recording was not able to establish that the warning had been given. It is likely to be every criminal practitioner’s experience that the length of a PTPH varies enormously, with some judges scrupulously going through every section of the form whilst others adopt a more ‘broad brush’ approach, perhaps due to pressure on court time. The experience in Jack Shepherd’s case highlights the necessity of prosecuting counsel being alive to the potential consequences if this warning is overlooked, particularly in PVL or other cases where defence counsel may only have been allowed a very short time in conference with clients in custody.

It could be argued that if a defendant is not given a ‘judicial warning’ as to the consequences of a failure to attend, any decision whether to ‘waive’ the right to do so was not ‘informed’. If it might not have been, could it be said any subsequent trial was ‘fair’?

In the event, this difficulty was overcome as the defendant’s legal representatives confirmed that upon announcing his intention not to attend his trial, the defendant had been warned, properly, of the consequences of his failure to do so.

As a result, the trial judge (the Common Serjeant) was satisfied that that the requirements of Crim PR r.25-2(1)(b) (i) had been met and went on to consider Crim PR r.25-2 (1) (b) (ii), namely whether the trial would be fair in his absence. He applied the guidance given by the House of Lords in R v Anthony Jones [2002] 1 AC (HL). He concluded a fair trial could take place.

It is perceived wisdom that to tell the jury that the defendant has voluntarily absented himself might be highly prejudicial. Does this rationale need revisiting?

Since Jones it has become standard practice for a jury trying an absent defendant to be told not to speculate as to why he or she is not in the dock. It is perceived wisdom that to tell the jury that the defendant has voluntarily absented himself might be highly prejudicial.

Does this rationale need revisiting? Given that a combination of Crim PR r.25-2 and the judgment in Jones renders the possibility of a trial in absence virtually nil unless a defendant has chosen to abscond, will it not be pretty obvious to a jury that that is the case, whatever direction they are given?

If a jury can, in appropriate circumstances, draw an adverse inference from a failure to answer questions in interview or, as will be developed below, a failure to give evidence at trial, is there any real difference if a defendant fails to attend his or her trial?

The argument for the status quo can be put that juries are constantly told not to speculate about all manner of things and this ought to be no different.

What happened next in Jack Shepherd’s case illustrates that this ought not always to be an inflexible rule. It emerged that Mr Shepherd, whilst not attending his trial, was, in fact, in fairly constant contact with his legal team and requesting regular updates on the proceedings whilst continuing to provide instructions. He declined, however, to divulge where he was.

As a result, when the prosecution closed its case and it was confirmed that the defendant was continuing to refuse to attend, an application was made for an ‘adverse inference’ direction to be given to the jury pursuant to section 35 of the Criminal Justice and Public Order Act 1994 to the effect that, subject to the well known caveats, the jury might take his failure to give evidence on his own behalf into account when considering their verdict.

It was submitted that as the defendant was clearly following proceedings, albeit from afar, he was engaging with the trial process and ought not to be in a better position than a defendant who had faithfully complied with his conditions of bail, had attended throughout but chosen not to give (or call) any evidence.

The learned trial judge, it seems, was persuaded by this argument in principle but pointed out that the law required him to ask defence counsel whether the defendant had been advised that the time had now come when he could give evidence on his own behalf and that, if he chose not to do so, an adverse inference might be drawn from that failure.

As defence counsel was in contact with the defendant, either directly or indirectly through his instructing solicitor, there was no impediment, it was argued, for that advice to be given and for leading counsel for the defendant to reply to the judicial question in the affirmative.

Setting aside whether counsel could be ‘required’ to do this, which opens up another topic entirely, that is what was done and the jury were given the standard adverse inference direction.

At the conclusion of proceedings, the Common Serjeant announced his intention to write to the Lord Chief Justice and the Criminal Procedure Rules Committee to ask them to consider with some urgency whether a defendant who makes an informed decision to absent himself from his trial should be in a more advantageous position than a defendant who attends but chooses not to give evidence, and in particular, whether the ‘judicial warning’ given at the PTPH should be expanded to include a warning that an adverse inference might be drawn by from the consequence of no evidence being called through his voluntary absence.

One can see why it might seem grossly unfair…that an absent defendant can escape the drawing of an adverse inference if a jury are told not to speculate as to why he is not there, when the defendant who attends cannot.

One can see why it might seem grossly unfair, particularly where the absent defendant had proved sufficient instructions for his representatives to continue to represent him at trial, that an absent defendant can escape the drawing of an adverse inference if a jury are told not to speculate as to why he is not there, when the defendant who attends cannot.

It is difficult to justify the distinction but, as the law stands, unless the absent defendant decides to do as Jack Shepherd did, and remain in touch with his lawyers and thereby in a position to receive advice as to the trial process, the defendant who gives sufficient instructions to allow his case to be put but then absconds places himself in a better position than the defendant who attends throughout never intending to give evidence.

Whether these issues trouble the Court of Appeal or what response the Common Serjeant receives, remains to be seen.