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The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 25: TRIAL IN ABSENCE
Background
25.1 The current provisions for trial in absence in a summary case in Scotland are to be found in section 150(5) to (7) of the 1995 Act. These sub-sections provide:
"(5) Where the accused is charged with a statutory offence for which a sentence of imprisonment cannot be imposed in the first instance, or where the statute founded on or conferring jurisdiction authorises procedure in the absence of the accused, the court, on the motion of the prosecutor and upon being satisfied that the accused has been duly cited, or has received due intimation of the diet where such intimation has been ordered, may subject to subsections (6) and (7) below, proceed to hear and dispose of the case in the absence of the accused.
(6) Unless the statute founded on authorises conviction in default of appearance, proof of the complaint must be led to the satisfaction of the court.
(7) In a case to which subsection (5) above applies, the court may, if it considers it expedient, allow counsel or a solicitor who satisfies the court that he has authority from the accused so to do, to appear and plead for and defend him."
25.2 Trial in absence occurs very rarely at present. In the first place, it is not competent when a common law crime is charged, such as theft, assault or breach of the peace. Secondly, there are restricted categories of statutory offence which can be tried in the absence of the accused. Either the offence must be one for which imprisonment cannot be imposed or the statute creating the offence must authorise trial in absence.
Issues
25.3 In the experience of Committee members many accused fail to appear on the day of their summary trial. Scottish Court Service statistics show that in 2002-03 8% of sheriff court trial hearings - over 4000 hearings - resulted in the issue of a warrant for the arrest of the accused. 59 Witnesses present will lose a day's work, and will be entitled to travel and other expenses. The police, the Crown and the courts will also have incurred abortive expenditure, and defence lawyers will also lose out. Above all, justice is seen not to be done.
25.4 Warrants will be issued for the arrest of the absent accused, but a new trial date will not normally be set until the accused appears on warrant. The full process of witness citation will have to be repeated. In summary cases police witnesses are generally crucial, and the waste of police time involved is therefore considerable - both time lost through an abortive court attendance and the time involved to trace and apprehend the accused.
25.5 For the accused failure to appear can be a deliberate strategy to postpone the trial until witnesses' memories have faded or (in some extreme cases) until the case has called so many times without proceeding that delay forces the Crown to abandon it. In multi-accused trials one absconder causes the whole trial to be delayed and it is not uncommon for another of the accused to fail to appear at the next trial diet, thus causing a further postponement. An accused arrested on a warrant can be remanded in custody until the rearranged trial, but this is an expensive option which tends to be adopted only when there is a clear pattern of absconding. The fines otherwise imposed for the failure to appear for trial come nowhere near to offsetting the cost of an abortive trial. If an accused is prosecuted for the failure to appear this adds another procedure to the workload of the court. As we have stressed already, however, the real cost of accused failing to appear is that justice is thwarted and the system brought into disrepute.
25.6 The Committee was clear that while the rights of the accused to a hearing before an impartial tribunal were inviolable under ECHR, it was reasonable to expect the accused to take some action to claim those rights. This is in line with our general view (see particularly paragraph 2.7 above) that accused persons should not indefinitely be able to frustrate justice by their inaction. So far as we can discover The European Court of Human Rights has never found an ECHR breach where an individual who had been duly cited to trial voluntarily opted not to attend and had been tried in his or her absence, provided that that jurisdiction's procedure provided a safeguard enabling the accused to have the matter reopened. It is, of course, open to an accused convicted in absence to appeal against conviction and/or sentence. Additionally, the House of Lords has recently held that a trial in absence in England, where a defendant failed to appear, is not contrary to Article 6, even where the charges are very serious. 60
25.7 We are therefore of the view that, if the court is satisfied that an accused has been informed in writing or has been told of the date of the trial, that he or she is required to attend a particular court for trial on that date and that, if he or she fails to attend, the trial may proceed in his or her absence, it should be competent for the court to hold such a trial. Accused who appear at intermediate diets should routinely be told that if they fail to appear for trial the trial may proceed in absence. Trial in absence should be competent whether the accused has been charged with a common law crime or a statutory offence and whether or not the crime or statutory offence is punishable by imprisonment.
25.8 We recognise the importance for the accused of being able to re-open the matter. The appeal route is, of course, always available. The Committee concluded, however, that there would be advantage in an additional safeguard providing for speedy reconsideration by the court of first instance where a manifest error or injustice has occurred. Our proposals for that safeguard are set out in more detail below (paragraphs 25.18 - 25.19).
Trial in absence in Summary Procedure; Practical Issues
Legal representation
25.9 In the Criminal Procedure (Amendment) (Scotland) Bill, clause 11(3), it is proposed that for solemn cases section 92 of the 1995 Act be amended so as to provide that the court may, on the motion of the prosecutor, allow the trial to proceed and be disposed of in the absence of the accused provided that the court is satisfied that the accused was cited in accordance with the Act and that it is in the interests of justice to proceed in the absence of the accused. A new section 66(6AA) of the 1995 Act will require that notice be given to the accused that, if he or she fails to appear at the preliminary diet or at the trial diet, the case may proceed in his or her absence. Where the court exercises that power it is required to allow a solicitor with authority to act for the purposes of the accused's defence to continue to do so or, if there is no such solicitor, at its own hand to appoint a solicitor to act for those purposes. A solicitor so appointed is given the same authority as if engaged by the accused.
25.10 We can understand why, in the serious cases which are prosecuted in the High Court and before a sheriff and jury, it is considered to be necessary that the interests of an absent accused should be protected by a solicitor who has acted for him or her or by a court appointed solicitor. Accordingly, we are not surprised to find that in the proposed new sub-section it is directed that there be such an appointment.
25.11 In relation to summary criminal proceedings we do not recommend that a similar provision be enacted. We would accept that a summary court should be required to allow a solicitor with authority to act for the purposes of the accused's defence at the trial to continue to act for those purposes. However, if there is no such solicitor, we consider that the court should be given discretion as to whether or not a solicitor should be appointed by the court to act for those purposes. Many infringements of statutory provisions are relatively straightforward. If the accused has never been represented, a court appointed solicitor who, by definition, would not have had an opportunity to meet the accused and take instructions from him or her, could not advance a defence on behalf of the absent accused other than to put the Crown to proof. In a summary criminal court, particularly one presided over by a professional judge, the court will be well able to ensure that the Crown case is sufficiently proved before it considers whether the accused should be convicted.
Identity of the accused
25.12 In many cases which go to trial in the absence of the accused, the identification of the accused will be an issue. In terms of the 1995 Act, section 280(9) it is to be presumed that the person who appears in answer to the complaint is the person charged by the police with the offence unless the contrary is alleged. That person is likely to have appeared and confirmed his or her identity at the pleading and intermediate diets prior to the trial. We understand that persons who are arrested and taken to a police station and charged in connection with an offence are, almost without exception, photographed. We recommend that legislation should make it possible to establish the identity of an offender by photographic evidence where identity is in issue.
25.13 It may be objected that production of a single photograph of the accused might lead to a miscarriage of justice. We very much doubt whether that argument is valid, especially if the evidence is as to the person who was charged by the police. Accused who are present in court during a trial normally sit in the dock and are clearly seen to be in a different position from members of the public on the public benches. Accused are often identified by witnesses in the course of a trial in which the remainder of the courtroom is either empty or more or less so. That is not objectionable per se. 61
Sentencing
25.14 So far as sentence is concerned we consider that, following conviction at such a trial, it should, so far as possible, be competent for the court to impose any sentence which it would be competent to impose for that offence. We do not think that, in the event of a conviction following trial in absence, it should be necessary for the court to issue a warrant for the arrest of the offender in every case so that he or she can be sentenced. At the least the court should be able to impose fines, make compensation orders, supervised attendance orders instead of fines, exclusion orders (from licensed premises) and non-harassment orders.
25.15 We consider that those who are convicted following trial in absence who are either under 21 or who have not previously been sentenced to a period of imprisonment or detention should not be deprived of their current right not to be imprisoned until the court has considered a Social Enquiry Report into their background and circumstances. It follows that, so far as they are concerned, we do not consider that a sentence of imprisonment or detention should be imposed in the absence of the offender.
25.16 In addition, while there might be fewer objections to the court, following trial in absence, being given power to impose a sentence of imprisonment in the case of an offender who is over 21 and who has previously been sentenced to imprisonment or detention by a court in any part of the United Kingdom, we recommend that such sentences should continue to be imposed only in the presence of the offender. Similarly a community service order cannot be made unless the court is satisfied that the offender is a suitable person to perform work under such an order and the offender consents 62 and we recommend therefore that it should not be competent to impose such an order in the absence of the offender.
25.17 Before a court can make a probation order the offender has to express willingness to comply with it. 63 We would not recommend that probation orders should be made in circumstances in which the offender may be unwilling to comply with some or all of the conditions. The conditions attached to a probation order can be tailored to the needs of the individual offender and may, for example, require the offender to undergo treatment for a mental condition either as an in-patient or as an out-patient. It follows, we think, that probation orders should not be made in the absence of the offender.
Safeguard provisions
25.18 Section 142 of the Magistrates' Act 1980 provides that, in England and Wales, the court may vary or rescind a sentence or other order made when dealing with an offender if it appears to the court to be in the interests of justice to do so. That power allows the fixing of a new hearing of the case. It also enables an invalid sentence or order to be replaced by one which is valid. As we understand the position from visits to magistrates courts in England and Wales, section 142 is seen as a valuable safeguard where trials are conducted in absence. It is however also applicable to other instances where it subsequently appears that the court had proceeded or convicted or sentenced an individual but an error had been made or further information had come to light. For example, a person convicted of using a motor vehicle without insurance may be able to establish at a later date that there was insurance in force at the material time, by producing an insurance certificate.
25.19 We recommend the introduction of a similar provision in Scotland, in particular as a safeguard in relation to trials held in absence of the accused, but also in the wider circumstances mentioned above. We do not propose that such a provision should take the place of the Appeal Court, but rather should provide a quick and inexpensive remedy to correct obvious errors and injustices. In this provision we see a clear parallel with the safeguard mechanism we propose in relation to the collection and enforcement of fiscal fines and similar penalties from para 11.26.
We recommend that trial in absence should be competent whether the accused has been charged with a common law crime or a statutory offence and whether or not the crime or statutory offence is punishable by imprisonment.
We recommend that trial in absence should only take place if the court is satisfied that the accused has received notice that he or she is required to attend trial at a particular time and that if he or she fails to do so the trial may or will proceed in absence.
We recommend that trial in absence should be competent where any counsel or solicitor instructed in the case withdraws.
We recommend that the court should not be required to appoint a solicitor when the accused is unrepresented but should have power to do so.
We recommend that it should be made competent to establish the identity of an offender by photographic evidence where identity is in issue.
We recommend that following trial in absence, a court should have power to impose fines, make compensation orders, supervised attendance orders instead of fines, exclusion orders (from licensed premises) and non-harassment orders.
We recommend that it should not be competent to impose sentences of imprisonment or sentences which require the consent of the accused in the absence of the accused.
We recommend that a provision be introduced in Scotland along the same lines as section 142 of the Magistrates' Act 1980 in England and Wales, which provides that the court may vary or rescind a sentence or other order made when dealing with an offender and may order a rehearing of the case if it appears to the court to be in the interests of justice to do so.
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