Case No: 20120587 C5
Neutral Citation Number: [2013] EWCA Crim 2043
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TRURO CROWN COURT
His Honour Judge Cottle
T 20117144
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/11/2013
Before :

LORD JUSTICE McCOMBE
MR JUSTICE WYN WILLIAMS 
and
MRS JUSTICE PATTERSON 
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Between :

	Kevin John WELLS	Appellant	
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	REGINA	Respondent	

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Mr WPL Sellick (instructed by Tuckers LLP) for the Appellant.
Miss A McCarthy (instructed by Crown Prosecution Service) for the Respondent

Hearing date : 5th November 2013
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Judgment
Lord Justice McCombe: 
1.	On 21 September 2012 in the Crown Court at Truro, after a trial before HHJ Cottle and a jury, the appellant was convicted of a number of sexual offences. He was tried upon an indictment containing 15 counts. The principal complainants were sisters, whom we shall call H and V. H was born on 22 November 1989 and V, her elder sister was born on 14 May 1986. Their mother, whom we shall call J, was the complainant in respect of a single charge of indecent assault (count 15 on the indictment) to which the appellant pleaded guilty on 28 March 2012, some 6 months before the trial of the principal charges. 
2.	The appellant was born on 9 December 1983. The complainants and the appellant were neighbours and the events in question spanned a period between 1997 and 2001 when H was aged between 8 and 10 years old and V was aged between 11 and 14. At that time the appellant was between 14 and 16 years old. At the time of trial the appellant was 29 and the complainants, H and V were aged 23 and 26 respectively.
3.	At the conclusion of the trial the appellant was convicted (by majority verdicts, 10:2) on counts 1 to 4 and 11 to 13 of indecent assault contrary to s.14(1) of the Sexual Offences Act 1956, on counts 5 and 6 of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960 and on counts 7 to 10 of rape contrary to section 1(1) of the 1956 Act. The appellant was acquitted on two counts of indecent assault on V, one count by the jury and on the other on the direction of the Judge. 
4.	On 18 October 2012 he was sentenced by the Judge on counts 7 to 10 (rape) to 7 years imprisonment on each count concurrent, on counts 1 to 4 and 11 to 13 (indecent assault) to 3 years imprisonment on each count concurrent, on counts 5 and 6 (indecency with a child) to 3 years imprisonment on each count concurrent and on count 15 to 6 months imprisonment. All the sentences were ordered to be served concurrently to the rape sentences, giving rise therefore to a total term of imprisonment of 7 years imprisonment, with 28 days spent in custody on remand to count towards the sentence. 
5.	The appellant now appeals against conviction and sentence by leave of the SJ.
6.	The appeal against conviction turns upon procedural matters arising following the appellant’s failure to attend his trial on the fixed start date of 17 September 2012. In circumstances to which we shall return, the trial proceeded in the appellant’s absence until his arrest over the night of Wednesday/Thursday, 19/20 September, when he was arrested on a bench warrant and was brought to court at about 1300 hours on the Thursday.
7.	The grounds of appeal against conviction are that (1) the Judge erred when he ruled on Tuesday, 18 September that the trial should proceed in the appellant’s absence; (2) the Judge erred on Wednesday, 19 September when he directed the trial to proceed, when information was received that the appellant may have attended a Job Centre in Birmingham on the previous day; and (3) the Judge erred on Thursday, 20 September when he declined either to order a re-trial or, in the alternative, to direct that the Crown witnesses be re-called to be cross-examined.
8.	 In view of the issues now arising, it is unnecessary to say more about the underlying facts of the matters charged. What matters is the history of the proceedings pre-trial and what happened when the appellant failed to appear on the first day.
9.	The Plea and Case Management Hearing was held on 28 March 2012 before HHJ Clark QC, when the appellant pleaded guilty to count 15, and his trial on the remaining counts was fixed for Monday, 17 September 2012 with an estimated length of 3-4 days. 
10.	When the appellant failed to attend on the first morning, counsel, Mr Sellick (who appeared for the appellant then as now) informed the Judge that there had been correspondence sent to the appellant and that three weeks previously there had been telephone contact between the appellant and the solicitors acting, who had been told by the appellant that he intended to travel to Cornwall over the weekend prior to trial so that he would not be late arriving. The Judge was told expressly that the appellant certainly knew the trial date. 
11.	All were under the impression that the appellant was living at a YMCA hostel. Calls to his mobile telephone were going directly to the voicemail. Enquiries were made to try to ascertain the appellant’s whereabouts and at 1108 hours the Judge was told that the solicitors had been to the hostel but had been told that the appellant had been evicted from that property in the light of the charges that he was facing. The hostel managers told the solicitors that the appellant had told them that he was going to live with “an ex.” and that he came back from time to time to collect mail. The new address was unknown to them. Counsel informed the Judge that his instructing solicitors considered that they may have been deceived by the appellant and were considering withdrawal from the case. Mr Sellick confirmed to the Judge that the appellant “clearly” knew the trial date. A bench warrant was issued and a further address was mentioned, being that of a person believed to be an ex-girl friend, which Mr Sellick was able, on instructions, to communicate to the court.
12.	On the following day, Tuesday 18th September, the appellant again failed to attend. Attempts to find the appellant had met with no success. The prosecution applied for the trial to commence in the appellant’s absence. The application was opposed on the basis that there was information that the appellant was due to attend at a Job Centre in Birmingham at 4 p.m. that day, in accordance with his standard fixed appointment. Arrangements were being made for police to attend to apprehend the appellant at that time.
13.	The Judge recognised that he had discretion in the matter and addressed the questions that, on the authorities, were required to be asked before proceeding in a defendant’s absence. He said that, in his view, the discretion to proceed should be exercised only in “rare and exceptional cases” (i.e. the phrase used by Rose LJ, the Vice-President, in Hayward [2001] QB 862). He recognised that an adjournment might lead to the appellant being caught. He considered, however, the length of the adjournment that might be required and said that a re-listing might postpone the trial for many months. He recognised the danger of a jury drawing adverse conclusions from the appellant’s absence and the duties that lay upon him to direct the jury accordingly. He referred to the interest of the public and of the complainants in proceeding with a long-fixed trial date. Balancing those factors, the Judge decided that the trial should start. It was decided that the trial would proceed, in the first instance, to the point where the case had been opened and the complainants’ video evidence had been played. It was thought that that would take up time up to the late afternoon of that day. It was recognised that the appellant might be apprehended during the day and so be present for the rest of the trial.
14.	On the following day (Wednesday, 19th), the appellant was still not present. The court was told that he had indeed attended the Job Centre, but much earlier in the day than his customary appointment, on the basis that he had informed the Centre that he had a job interview in the afternoon. 
15.	It was by then becoming apparent that Mr Sellick and his solicitors felt obliged to withdraw from the case. No doubt as a result of this, Mr Sellick raised with the Judge a particular matter arising out of the recorded evidence of H that he would have wished to explore in cross-examination. This related to an answer, given by H in her recorded interview, suggesting that she understood that her mother (J) and V had experienced sexual abuse from someone other than the appellant in the past and possibly felt guilty because they should have realised at an earlier stage that H had also been abused. Mr Sellick did not at that stage refer to an aspect of H’s evidence, of perhaps more importance, to which we shall have to return a little later in this judgment. Indeed, he made no other reference to subjects that might properly form the subject of questions for the Judge to pose to the witnesses in his absence. 
16.	Shortly after that discussion, Mr Sellick stated that both he and his instructing solicitors felt obliged to withdraw from the case, in accordance with their respective professional rules.
17.	The trial continued. The Judge questioned H, in the jury’s absence, about the matter arising out of her recorded evidence about which Mr Sellick had been concerned. Having done this and having considered further the position with Miss McCarthy for the Crown, it was decided (for reasons that are not clear to us) that that particular matter should not be explored with H before the jury, as it did not appear to be in the appellant’s interest to do so. The jury returned to court and the Judge asked some questions of H. He asked her why she had not complained about the alleged abuse by the appellant until 2009, many years after the events. Her explanation was that she had been scared to do so. The Judge put to H, the appellants’ denial of the abuse in his interviews with the police. H refuted those denials. 
18.	V gave evidence in chief before the jury and was questioned by the Judge, again as to the lateness of the complaints and on the basis of the appellant’s denial of abuse on her in his police interviews. Again, the answers were that she would have been scared and embarrassed to complain and that the appellants’ denials of wrongdoing were false. 
19.	The court adjourned for the day. When it reconvened on the following morning (Thursday, 20th), the Judge was told (at 1104 hours) that the appellant had been arrested and was on his way to court. He was expected to arrive at about 1300 hours. Mr Sellick had attended once more and indicated the obvious desire to take instructions once the appellant arrived at court. The Judge made it immediately clear, as he did at various times thereafter, that he was not willing (in his words) to “wind the clock back”, absent a good explanation from the appellant for his non-attendance on the first 3 days of the trial. Mr Sellick put to the Judge that judicial questioning of the witnesses for the Crown was not the same as cross-examination by counsel for the accused. No express reference was made to the possibility of having the complainants re-called for full-cross examination. The Judge repeated that he was not going to “wind the clock back”. He indicated that, absent proper excuse for non-attendance, he was inclined to allow the appellant to “re-join” the trial at the stage which it had reached, i.e. by giving his own evidence, if he so wished, and being cross-examined on it. Mr Sellick said to the Judge that he could not be at the court the following week and the Judge said that he was in the same position. The reasons for this were not explored. It does not seem that any enquiry was made at that stage about whether the witnesses could be recalled or what the reasons were why, if that course was taken, the trial could not continue into the following week. 
20.	Mr Sellick anticipated that he might have instructions to apply to discharge the jury. He said,
“I do not think that will take very long and I can imagine the result, but I may, for the sake of form, have to make that application…”
No enquiries seem to have been made at that stage about the listing position for an early re- trial if the jury was discharged. 
21.	The court then adjourned for the mid-day break and at 1415 hours the appellant was produced in court, no doubt after Mr Sellick had taken instructions. It then emerged that at one stage before trial, the solicitors had written to the appellant telling him wrongly that the trial date was in December, but that that had been corrected. Mr Sellick’s instructions were that the appellant had the impression that the date was 28 September. The appellant gave instructions that he had indeed attended a job interview on the Tuesday of that week and gave the name of a builder in the Birmingham area as the employer in question. Mr Sellick told the Judge that the appellant had been arrested in the end at the address of the ex-girlfriend which had been mentioned when the warrant was issued on the first day of the trial. It was submitted that he would not have been there if he was truly absconding. Mr Sellick’s instructions were that the appellant had not received the calls to his mobile telephone as he had no available credit on it. It was repeated that the appellant had in his head the date of 28 September as being the trial date. Mr Sellick proceeded to apply for the jury to be discharged and a re-trial ordered.
22.	The discharge application was opposed by the Crown on the basis that the court had been told on the first day, by counsel on instructions, that the appellant had been in contact with his solicitors three weeks before trial when the true date was confirmed and he had said that he would be travelling to Cornwall over the weekend, which would have made no sense if the trial was to start on 28th September, which was a Friday. Counsel for the Crown invited correction of this information so given to the court on the first day of trial, if the instructions were now different. Mr Sellick asked for time to check the position further with his instructing solicitors.  The Judge allowed time accordingly and the court adjourned at 1428 hours. 
23.	After the adjournment, at 1501 hours, the Judge was told that the solicitors had an attendance note of 16 August 2012 which, while not expressly referring to the trial date, recorded that the appellant was going to travel to Cornwall over the weekend so as to be present in time. Mr Sellick repeated the point that if the appellant was truly absconding he would not have been at the address at which he had been arrested the previous day.
24.	Having considered those matters, the Judge rejected the suggestion that the appellant was unclear as to the date of trial. He was satisfied that the appellant had been voluntarily absent on the first day of trial and had been trying to avoid detection. Again, the Judge said that he would not “wind the clock back” except to the extent of allowing the appellant to give his evidence. 
25.	The appellant duly gave evidence on the same day denying all the allegations. Unlike the complainants, he was, of course, cross-examined.
26.	The Judge summed up the case to the jury on the following day (Friday, 21st), beginning at 1013 hours. At the start of the summing-up he warned the jury not to speculate as to the reasons for the appellant’s initial absence from the trial. He told them that his absence was not relevant and afforded no support for the Crown case. He told them that they must consider the evidence that the appellant had given in the same way as evidence given by other witnesses. No criticisms are made of the summing-up which the Judge delivered. The jury retired at 1101 hours. After a retirement of four hours (at 1518 hours), in the absence of agreement on any count or counts, the Judge gave a majority verdict direction. At 1602 hours the jury returned to court with majority verdicts of guilty on all the outstanding counts.
27.	We have already indicated the grounds upon which this appeal against convictions is based.  Criticism is made of the Judge’s decision to proceed on both 18th and 19th September in the light of the information available on those two days. It is then submitted that on 20th September the Judge should have discharged the jury and ordered a re-trial. At the very least, it is argued, he should have arranged for the re-call of the Crown witnesses for cross-examination, although as we have already mentioned no such application was made at the time.
28.	We examine those points in turn.
29.	It is to be noted that no criticism is levelled against the Judge’s conclusion that the appellant had indeed been deliberately absent from his trial until arrest and had been avoiding detection. In our judgment, that finding was clearly correct. As the Judge found, the appellant must have been well aware of the true trial date. His solicitors had the YMCA address; the appellant had been collecting correspondence from there. He had been in oral communication on 16 August with solicitors about the trial date and told them that he was planning a journey to Cornwall over the weekend before trial, so as to arrive on time. The clear inference was that he was expecting a Monday start and not a Friday one. 
30.	The trial did not proceed on the Monday (17th). A warrant was issued. On the next day (18th), the appellant still had not appeared. It was thought that the appellant might be caught at the Job Centre that afternoon, but the Judge could not be criticised, in the face of such uncertainty and of the apparent deception of the appellant’s legal team as to where the appellant was, for proceeding with the opening and the evidence in chief. On the basis of proper directions to the jury about the appellant’s absence on the first day, which (we are told) were given, there could be no significant prejudice if the appellant was duly apprehended that afternoon.
31.	On the following day (19th), the appellant still had not been found, although it emerged that he had been to the Job Centre earlier than his standard appointment time, which it seems would only have been permitted on the basis of attendance at a job interview. At that stage, solicitors and counsel for the defence withdrew. In our judgment, the Judge was acting well within the bounds of his discretion to continue with the evidence and to question the witnesses to the limit that his duty of impartiality allowed. He did this.
32.	On Thursday, 20th September, the appellant had been arrested and arrived at court at some time before 1415 hours, when he appeared in court, again represented by counsel. Counsel made his application to discharge the jury, but made no express alternative application to have the Crown witnesses recalled, although we are prepared to accept that such an alternative course must surely have been present in everybody’s minds. We are surprised that this option was not explored at all. It also seems odd to us also that consideration was not given either to ordering an early re-trial, if necessary at the expense of other business in the lists either at Truro or at another Crown Court location.
33.	The real difficulty in this case emerges, in our view, when we come to consider the safety of the conviction, in the light of the appellant’s arrest and his presentation at court on the Thursday. The court’s decision not to “wind the clock back”, but merely to proceed from the point which the trial had reached meant that the appellant did not have the benefit of a cross-examination of the complainants by counsel. As we have indicated, they were questioned by the Judge, but obviously such questions could not replace a full testing of the evidence by experienced counsel.
34.	We recognise that a defendant who voluntarily absents himself from a trial cannot expect, in all cases, to have the benefit of a trial conducted in accordance with all the same procedures that would have been applied if he had attended at the proper time. In the leading case dealing with trials begun or continued in the absence of persons who abscond (R v Jones [2003] AC 1) Lord Bingham of Cornhill said (at paragraph [11]): 
“11. Counsel for the appellant laid great stress on what he submitted was the inevitable unfairness to the defendant if a trial were to begin in his absence after he had absconded. His legal representatives would be likely to regard their retainer as terminated by his conduct in absconding, as happened in this case. Thus there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. The trial would be no more than a paper exercise (as Judge Holloway at one point described it) almost inevitably leading to conviction. The answer to this contention is, in my opinion, that one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. If a defendant rejects an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground the he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his right to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he voluntarily chooses not to exercise his right to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and represented.”
35.	We acknowledge that principle but the court still has to examine the fairness of the process, and the safety of any conviction resulting on all the facts of the case. The greatest difficulty in this case is a matter which we have not so far mentioned. It is this.
36.	The complainant, H, was first interviewed about these matters on 1 August 2009. In the course of that interview she gave an account of sexually abusive behaviour by the appellant on several occasions, but stopping short of penetrative intercourse. For example, she said, 
“…he would go through all the motions and that of having sex. But because I was so young it was very difficult to actually get it in, so it would just be going up against the openings really”
	  A little later she said this, 
“…he would get it as close to the openings as he could. But he could never, well, he certainly tried, but he could never get it fully in…
But he would get it as close as he possibly could…”
37.	H was re-interviewed on 11 May 2010. At the start of that interview she said,
“When you asked before I didn’t, sort of, say everything…that happened because I couldn’t really say it to anybody really. But what happened was quite a lot worse. It was rape a lot of times, most of the time when it happened it was. And that’s what I needed to say…
Q. Okay. Tell me what you mean by “rape”, what you perceive it to be.
A. Full penetration.
Q. Okay. Of what part of your body with what part of his?
A. Vagina with penis…”.
H then proceeded to give a fuller account of penetrative sex perpetrated on a   number of occasions. It was this account that gave rise to the four counts of rape on which the jury convicted the appellant. 
38.	This was obviously a very important inconsistency which would have had to be covered in any cross-examination. It was not covered in the Judge’s questions to H after Mr Sellick’s withdrawal from the case on the Wednesday of the trial week. The Judge is not to be criticised for that.
39.	We consider that this feature of the case, if no other, ought to have led to very searching enquiry as to whether it was feasible to arrange matters so that H in particular and also V could be cross-examined either by being re-called or by the jury being discharged and an expedited re-trial being fixed.
40.	When it came to the summing-up, the Judge gave a very brief summary of the first interview and told the jury that it was in a second interview that H had given her account of the penetrative sex. However, he left to the jury the possibility of conviction of attempted rape. The Judge did not remind the jury that neither H’s account nor that of V had been tested in cross-examination. He did not direct the jury as to the disadvantage to an accused person of their being no cross-examination, perhaps particularly in a case where inconsistencies in a witness’s various accounts are as obvious as they were in this case. Mr Sellick informed us that the points were raised in his speech to the jury on the Thursday afternoon, but no more was said about it by the Judge in his summing-up.
41.	In this context we remind ourselves of the further points made by Rose LJ in Hayward (supra) as follows:
“If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to 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.”
42.	In our judgment, this was a case in which the proper cross-examination of the witnesses, if achievable, was an important ingredient in the fairness of the trial of these charges. This was particularly so where an important inconsistency in the main complainant’s evidence had not been explored in either cross-examination or in the Judge’s questioning of the witness. 
43.	If the appellant had remained absent throughout, he would have undoubtedly lost any right to complain about it not having happened. However, in the end, we consider that after his apprehension, insufficient was done to enquire as to how, if at all, this potential deficiency in the trial process could be rectified. The assumption was immediately made that the trial could not continue into the following week without any consideration of whether that was really so. No enquiries were made about achieving an expedited re-trial as an alternative. Finally, neither the inconsistencies of the complainant H in her two accounts, nor the consequences of an absence of cross-examination from the point of view of an accused, were brought to the jury’s direct attention in the summing-up. Nothing was said at all in the summing-up about the fact that while the appellant had been cross-examined the complainants had not. So far as the appellant’s absence from part of the trial was concerned, the Judge said this: 
“You will recall, I imagine, what I said to you at the outset of the trial relating to the fact that the defendant was absent when this trial began. You must not be tempted, I repeat, to speculate as to the reason for his absence at that stage. It is not relevant to your assessment of the evidence, which of course you must consider very carefully. You should not treat the defendant’s absence from most of this trial as any support for the prosecution case. He has joined the trial at a late stage, he has given evidence and you will of course consider his evidence in the same way as you consider the evidence given by other witnesses.”
44.	We recognise that an absconding defendant will frequently have no complaint if a trial is conducted wholly or in part in his absence. However, it is always necessary to consider how the fairness of the trial process can be preserved at each stage. In our judgment, in this case, insufficient was done following the appellant’s arrest and production at court on the Thursday to see what could be done to achieve what the circumstances required in the interests of all concerned and in the interests of justice. We have concluded, therefore, that the appeal must be allowed and the convictions quashed.
45.	At the conclusion of the hearing we reserved our judgment, but heard submissions from counsel as to whether this was a case in which re-trial should be ordered. Miss McCarthy applied for a re-trial in that event. That was not opposed by Mr Sellick. Accordingly, we will order that the appellant be re-tried on a fresh indictment. We will give the necessary directions when this judgment is formally handed down. No more needs to be said about the appeal against sentence.