No: 2007/2268/D2 
Neutral Citation Number: [2007] EWCA Crim 3019
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 22 November 2007
 
B e f o r e:

LORD JUSTICE HUGHES 

MR JUSTICE WYN WILLIAMS 
 
HIS HONOUR JUDGE RICHARD BROWN DL 
(Sitting as a Judge of the CACD)  
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R E G I N A 

v 

BENAISSA AMROUCHI
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Computer Aided Transcript of the Stenograph Notes of  
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Mr D O'Callaghan appeared on behalf of the Appellant 
Mr R Spencer‑Bernard appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HUGHES:  This appellant was tried in his absence for offences of violence to prison officers.  He was in prison at the time of his trial.  The trial judge proceeded in his absence on the basis of information from the prison via the officer in charge of the cells at court to the effect that the defendant was refusing to come to court.  The appellant now contends that the judge proceeded on the basis of inadequately secure information and in any event that he should have acceded to an application which was made on the absent prisoner's behalf to adjourn for 24 hours in order to ensure that it was clearly established that he was refusing to attend.
2.	The chronology has taken a little disentangling and we are grateful to counsel on both sides for their help in doing this, but the critical dates appear now at least to be reasonably established.  How far they were established in front of the trial judge is perhaps less clear.  
3.	The alleged offence in prison against the prison officers had been on 22nd June 2005.  The case was initially listed for trial at Aylesbury Crown Court on 19th June 2006.  The defendant failed to attend on that day, but did attend on the following day, 20th June, when the case was listed once again for mention.  The upshot of that hearing on 20th June 2006 was that the case remained in the then current warned list.  In fact, however, it was not reached during the then current period and the trial was subsequently given a fixed date on 12th July 2006.  The date that it was given was Monday 16th October 2006, which date held fast thereafter.
4.	The defendant's solicitors wrote to him to tell him of the date of his trial on 18th July and again on 21st August.  They wrote, it is plain, to the address which the defendant had provided them with and the letters were not returned.  They had, however, as it would appear, no direct or indirect contact with their client, the defendant, at any time between 12th July when the fixed date was given and the first day of the trial on 16th October.  As it now appears, in between the dates of those two letters the defendant was due to appear at a different Crown Court at St. Albans on 10th August.  That was for an entirely different matter ‑ there was an alleged breach of a community order which had been made upon him for something quite different in the past.  On 10th August he failed to appear.  A warrant was issued at St. Albans for his arrest.  At the time of the trial nobody knew when he had been arrested.  The prison records produced to us today appear to show, and Mr O'Callaghan on the defendant's behalf asserts that they show, that he was in fact arrested on 29th August and it was because he had been arrested on 29th August that he was in custody when the time came round for his trial on 16th October.  
5.	On 16th October he was not at court.  The judge, as one would expect, made enquiries as to why not.  His own counsel and solicitor's clerk who were there were not able to help, understandably.  The judge made enquiries of the officer in charge of the Crown Court cells.  That was in this case, as in many others, not an officer from the prison where the defendant was currently in custody.  Even if it had been an officer of the Prison Service it would not necessarily have been from the same prison but in this case, as often happens, the cells officer in the Crown Court was a representative of the escort contractors.  The judge had the cells officer come into the witness box and give evidence on oath.  She explained that she had telephoned the prison just a few moments before coming into court, she had spoken to a representative of the discipline office at the prison where the defendant was then held and she had been told that the defendant had been asked to come to court, ie to make himself available to the escort contractors.  He had said, so the cells officer reported "No" and in response to a further enquiry "No, he could not be bothered".
6.	The judge also heard evidence from the solicitor's clerk from the solicitors instructed by the defendant.  He gave evidence of the writing of the two letters to which we have already referred.  He made it clear that there had in fact been no contact from the defendant at all since the case had been given its fixed date and that nobody knew when or indeed really why the defendant was now in custody, as he plainly was.  
7.	The judge was asked on behalf of the absent defendant to adjourn the case for 24 hours.  The submission was made to him that the evidence that the judge had was all indirect and might not be accurate, but that even if it was the defendant might not know what kind of court hearing he was absenting himself from.  The judge ruled that the appellant must have known from the letter of 21st August (that is the second solicitor's letter) that his trial was to take place on the date that it was due to take place, he accepted that the cells officer was accurately stating the fact that the defendant had refused to present himself to the escort and he concluded accordingly that the defendant was deliberately absenting himself.  Having come to that conclusion, he proceeded to the next question which was whether the trial should take place immediately and in the absence of the defendant.  He correctly identified the principles to be applied from the House of Lords' decision in R v Anthony Jones [2003] 1 AC 1 and he worked through the factors which are there enumerated and which are conveniently set out in Archbold at paragraph 3‑197 and following.  He concluded that because the defendant was absenting himself (on his finding) deliberately, an adjournment would make no difference because there was no reason to suppose he would change his mind.  He concluded that there was some disadvantage to the defendant in not being present at his trial, but in some circumstances arguably, at least possibly, also an advantage and he reached the conclusion that the public interest was that a trial should take place immediately.
8.	The single judge, Mitting J, gave leave to argue in this court first the proposition that the judge erred in not seeking the production of the defendant by making an order under the Crime (Sentences) Act 1997, Schedule 1 paragraph 3.  That statutory provision enables a court to ask the Secretary of State to produce a prisoner when the prisoner is needed at court and it gives the Secretary of State power to direct that the person be taken to court.  That, however, as has emerged in the discussion before us, is not an arguable basis for challenging the conviction in this case.  First, it is not a power in the court to compel attendance.  It is a power to request the Secretary of State, and through him the Prison Service, to produce the prisoner.  It follows that it is a power which adds nothing if the Prison Service is perfectly willing to produce the prisoner.  On the evidence of the escort contractor's records in this case, it is accepted on the appellant's behalf that the Prison Service was perfectly willing to produce him.  They had him on the manifest to be taken to Aylesbury on the day of the trial.  This power in the Crime (Sentences) Act is designed principally, in our experience, for use when the prison authorities will not otherwise know of the occasion for the prisoner to be at court.  A simple example is if the prisoner is required as a witness or a party to civil proceedings.  By contrast, in the normal case of a prisoner in custody whose trial is scheduled to take place at any criminal court in the jurisdiction, there are well‑established standing arrangements for the prison to be notified of the need for the production of the prisoner and for the prison to make arrangements for transport and production.  A request under the Crime (Sentences) Act, Schedule 1, is wholly unnecessary in any ordinary case.  It could have added nothing in the present case.  We need say no more about that ground of appeal.
9.	The principal ground of appeal which has been argued before us is that the judge erred in accepting indirect or hearsay evidence of the prisoner's refusal and in refusing to wait for at least 24 hours to see whether the prisoner changed his mind.  The appeal has been conducted purely on the basis of the record of proceedings in the Crown Court.  We should record that there is in our papers a witness statement from Mr Amrouchi.  We understand it to say that he was never asked to go to court on either the first or any subsequent day of the trial.  We have not been asked to rely on it and we would not have been prepared to rely on it without Mr Amrouchi being called and his evidence being tested.  In the same way we have in front of us a transcript of a subsequent hearing in the St. Albans Crown Court when the still continuing matter of his alleged breach of a community order finally came before Her Honour Judge Plumstead after the trial in the present case.  We are aware that in the course of that hearing, which was by video link, the appellant asserted that he had never been aware that he was required at Aylesbury.  For the same reason we are not prepared to act upon that in the absence of Mr Amrouchi's evidence, properly tested.  There are, as Mr Spencer‑Bernard properly reminds us, good reasons to require such investigation of this appellant's evidence before accepting what he says at face value and we do not do that.  
10.	To proceed in the absence of a defendant is sometimes necessary.  It is accepted in this case that one of the situations in which it is necessary, and perhaps the principal situation in which it is necessary, is where a defendant has deliberately absented himself.  If the trial judge is sure (a) that the defendant has deliberately absented himself and (b) that there are no reasonable steps that can be taken to get him to court, then a trial in his absence is permitted by law.  It is, however, a serious step to take and we respectfully endorse the proposition at the forefront of R v Anthony Jones that it is a decision to be made with "great caution and close regard to the overall fairness of the proceedings."  It is a step which ought normally to be taken only if it is unavoidable.  
11.	The practical consequences for a defendant who wishes to contest the allegations, whether for good, bad or indifferent reason, are enormous.  He cannot give evidence and he cannot even respond to changes or subtleties in the evidence as it comes out.  The jury, however carefully directed, is at least at risk of concluding that if he is not attending it must be because he has no confidence in his case.  Even if they do not come to that conclusion, it is undoubtedly very much more difficult to weigh up the case which has been put on his behalf if he is not there to make it.  This, moreover, was a case in which, good, bad or indifferent, the defence was self‑defence.  Sometimes it is no doubt true that self‑defence can be established through the evidence of independent witnesses but very often it depends almost entirely on the evidence of the defendant and this was certainly such a case.  
12.	There are a number of features of the judge's approach to the question of the trial in the defendant's absence which, with great respect, we are unable to endorse.  Considering the extent of the disadvantage to the appellant in not being able to present his own case, the judge directed himself that there would be, as he put it, the usual disadvantage in relation to those who are tried in their absence.  There is no sign that he gave any consideration to the fact that the potential defence was self‑defence or to the fact that it would depend entirely upon the defendant's own evidence.  Moreover, the judge in assessing the extent of disadvantage to the defendant said this:
"... he is not at risk of either going into the witness box and being cross‑examined, and making, dare I suggest, a fool of himself, or not going into the witness box and hearing the judge and the Crown comment on his absence and invite the jury to draw an adverse inference from the fact that he fails to go into the witness box.  So, on one view there is in fact an advantage to a defendant in not attending his trial." 
Those are no doubt two of the possible consequences of a defendant entering the witness box, but there is not very much sign of the judge adverting to the third at least possible consequence, namely that he might give convincing evidence.  
13.	Secondly, the judge had had the submission made to him that whatever might be happening back at the prison no one could really be sure that the defendant knew what kind of court appearance it was that he was being required to attend.  This is a defendant with a large and prolix series of previous convictions for all manner of offences and at any particular point in his criminal career it looks from his antecedents as if it would be likely that he might very well be the subject of a number of current series of court proceedings.  It is certainly known that there were then current also the breach proceedings in relation to the community order.  It may be of course that his only appointment at Aylesbury was for this trial, although how far that had impacted upon the defendant personally is a matter of uncertainty.  However, when that submission was made to the judge, the judge clearly directed himself that it did not really matter whether the defendant knew the reason why he was required at court or not.  He directed himself that if he was in any doubt about it he could have asked.  That, as it seems to us, is an error of principle.  It did matter whether the defendant was deliberately absenting himself from his trial on these allegations or not.  
14.	Thirdly, the judge reached the conclusion that the defendant must have known from the letter of 21st August of his trial date.  The difficulty about that is that on the evidence before the judge no one knew whether the defendant had been in custody on 21st August or not, in which event the letter would not have got to him.  As it turns out we now know that he was not, but the judge did not and indeed said so.  On that basis it is a little difficult to see quite how the judge came to the conclusion that that letter must have been received.  That is a less significant point because on the history as we have related it and on the material which we now have it is quite apparent that he was not in custody on the occasion of the sending of either of the two solicitor's letters and accordingly, although not for the reasons that the judge gave, the judge's conclusion that he at the very least ought to have known of the date of the trial was a justified one.  
15.	Lastly, and most importantly, the judge directed himself that an adjournment of 24 hours simply could not make any difference because if the defendant was saying that he could not be bothered to come to court there was no reason to think he would change his mind.  That, as it seems to us, was wrong.  First, it was wrong for the reason we have just given, namely that there was at least the possibility of doubt about whether the defendant knew precisely what kind of proceedings they were.  But secondly, it was wrong in any event.  Our universal experience is that in this kind of situation the proper course is to adjourn for 24 hours and to ensure that an explicit warning is delivered to the defendant that his trial is going to take place without him if he is not there tomorrow morning.  There are a number of ways in which that might be done.  It does not require, necessarily, the hearing of the evidence of the Prison Officer who delivers the message.  It does not require sending for the Prison Governor, which tends in any event to disrupt the administration of the prison.  But the judge needs to satisfy himself that the explicit warning that he gives is delivered.  We would suggest that most Crown Court judges would require written confirmation from the prison that the warning had been delivered and preferably in writing.  
16.	For all those reasons we are satisfied that the judge's approach to the question of whether to proceed with the trial was on this occasion flawed.
17.	We have addressed the question of whether nevertheless it is sufficiently clear that the defendant was refusing to attend for it to be plain in this court that whatever the judge had done could have made no difference.  It is on the face of it powerful evidence that the defendant was refusing, that he not only failed to attend on the first day of the trial but that he failed to attend on three successive days, including the last day for sentence.  We have a letter written quite recently from the prison service suggesting that they had been told on the first day of the trial that the defendant was required, that their record showed that he was refusing and that he refused subsequently on the ensuing days.  That letter is not entirely without its problems.  For example, it contains the assertion that the prison was supplied with a warrant for the second day, whereas it is absolutely clear that no warrant was issued and indeed there would be no point in doing so with a prisoner in prison.  Moreover, whilst we do not for a moment accept any assertion unsupported by evidence on oath to the effect that Mr Amrouchi was unfit to attend court because he had a bad back, we do pay attention to the fact that when he raised that assertion and said that he had seen the prison doctor on the first day of the trial, the initial response of the prison was a letter positively asserting that he had done no such thing.  Further investigation of the records show that for whatever reason he did in fact attend the surgery on 16th October.  That evidence falls many miles short of establishing that he was unfit to attend, but it does demonstrate that the initial prison response was, for whatever reason, inaccurate.  
18.	We also observe that when the defendant was due to appear at St. Albans in front of Her Honour Judge Plumstead on the subsequent occasion which we have already mentioned, that judge too was told that he was refusing to attend, whereas when she then set up a video link the appellant asserted that he had never refused at all.  Of course he might have changed his mind or changed his evidence, we do not know, but there is certainly for all those reasons some scope for doubt about the accuracy of the records and the response based upon them.  Whether that is so or not, it does not follow even if the defendant refused for whatever reason in the early morning of 16th October to get on the prison van that he would have continued in his refusal if given the kind of explicit warning which we are all satisfied he should have been given.  It is one thing to say first thing in the morning that you are not going to cooperate with those who come to collect you; it is another to do that knowing that your trial is going to happen in your absence if you do.  
19.	We are quite unable to say what would have happened if that explicit warning had been given, as we are sure it should have been, and in those circumstances whilst we entertain considerable doubts about the accuracy of Mr Amrouchi's assertion that he was never asked, we are not prepared to say that the conviction is safe.  In those circumstances this appeal against conviction must for those reasons be allowed.
20.	Mr Spencer‑Bernard, where do we go from there?
21.	PROSECUTION:  My Lord, I would invite you to direct that the matter be retried. 
22.	LORD JUSTICE HUGHES:  Yes. Mr O'Callaghan? 
23.	MR O'CALLAGHAN:  Mr Amrouchi was made aware that that is the likely course of events and we are content. 
24.	LORD JUSTICE HUGHES:  We have addressed that in our own minds and we have absolutely no doubt that the public interest requires that he be retried.  If it is proved this was an unpleasant assault on prison officers in the course of their duty.  
25.	We allow the appeal.  We quash the conviction.  He is to be retried on the counts which appeared in the original indictment.  A fresh indictment containing those counts must be preferred and he must be arraigned upon it within two months of today, unless this court directs otherwise.  He is to be tried at Aylesbury Crown Court unless the Presiding Judges of the South Eastern Circuit say otherwise.  
26.	What about his position in the meantime, Mr O'Callaghan? 
27.	MR O'CALLAGHAN:  My Lord, there has been some difficulties, as you are aware, of Mr Amrouchi seeking bail.  We had hoped to have his sister here to give more details, but I do not see her.   
28.	LORD JUSTICE HUGHES:  No.  On his own account he was in Morocco when he should not have been and he appears to have been in breach of a community order. 
29.	MR O'CALLAGHAN:  I appreciate that and so does Mr Amrouchi.
30.	LORD JUSTICE HUGHES:  No, Mr O'Callaghan, he must remain in custody until his trial.  Thank you very much.