Defendant’s refusal to attend Court

• Introduction
• How to proceed?
• Summary only offences
• First hearing in the magistrates’ court
• Trial in the magistrates’ court
• Sentence in the magistrates’ court
• Either Way and Indictable offences
• First hearing in the magistrates’ court
• Plea and Trial Preparation Hearing and Trial in the Crown Court
• Sentence in the Crown Court
• Custody time limits
• Re-review

Introduction

This Guidance is intended to assist prosecutors who have conduct of a hearing where:

• a defendant is in custody and has refused to leave the cell at prison, or
• a defendant has refused to leave the prison to attend court, or
• a defendant has refused to leave their cell when they have arrived at court, without good reason.

There are many reasons why a defendant may refuse to attend court. The reason in each individual case should be ascertained as far as possible and considered when deciding how to proceed. There may be a good reason or a reason which bears further investigation, for instance, a prisoner’s proven or claimed ill health.

This guidance should be applied in situations where the court, and the prosecution, is satisfied that there is no good reason for the defendant’s non-attendance.

It should be borne in mind that the case may proceed by way of video link. A person is to be treated as present in court when a live link direction has been made:  section 51 Criminal Justice Act 2003.

Her Majesty’s Prison and Probation Service (HMPPS) has issued guidance to Prison Governors which indicates that the court must communicate to the prison whether the defendant’s attendance is necessary, and why, so that the prison can decide whether force is to be used to bring the defendant before the court. Even if the court determines that the defendant’s attendance is necessary it remains a decision for the prison whether, and what, reasonable force is used on the defendant to secure attendance. The prison will take this decision considering all the circumstances, including the defendant’s conduct and behaviour at the point at which force is to be used.

How to proceed?

Prosecutors should seek, through the court and the prison, as much information as possible to understand the reason or reasons for non-attendance. The court should be invited to make appropriate enquiries. It is the court, not the prosecution, who will need to communicate to the prison whether attendance is necessary, and why; the prisoner is to surrender.  

The following information should be obtained from the prison court cell staff (in writing, or if possible, using a live link):

1. The circumstances of the non-attendance.
2. Any reason communicated for non-attendance by the defendant.
3. Whether the defendant knows what the hearing concerns (e.g., that it would consider venue, or bail, or a custody time limit, or a trial) and nonetheless refuses to attend.
4. Whether the defendant knows that the case may proceed in their absence.
5. Any information which can be ascertained from the defendant’s representatives.
6. What arrangements are available if attendance is deemed necessary, e.g., video link.
7. This includes whether a handcuffing application would be sought or how a non-compliant defendant is to be dealt with at court.

In addition to ensuring appropriate enquiries are made about why the defendant is refusing to attend, prosecutors should assist the court to communicate the legal position to the prison in respect of when and why the defendant’s attendance at court is required, which is detailed below.

Summary only offences

First hearing in the magistrates’ court

Appropriate steps should be taken to bring the defendant before the court to obtain a plea. If a defendant refuses to attend for a first hearing when charged with a summary only matter, in the absence of a plea being entered, the court has the power to adjourn under section 10 Magistrates’ Court Act 1980 (MCA 1980). Prosecutors should remind the court of this power and ensure that if there is to be a trial it can be held within the  56 day custody time limit (CTL).

As a result, the attendance of the defendant for the first hearing in a summary only allegation may not be necessary and not merit consideration of force by the prison to secure the defendant’s attendance.

Following the hearing witness evidence should be served pursuant to section 9 Criminal Justice Act 1967 so that it may be read if none of the other parties or their solicitors, within the relevant period, serve a notice on the party  proposing objections to the statement(s) being tendered in evidence under this section.  If statements have been served in compliance with section 9 Criminal Justice Act 1967 and no objection has been provided, then the evidence should be read.  If objection has been raised the witness can be called.  

Trial in the magistrates’ court

There is a statutory requirement that a summary trial proceed in the absence of a prisoner aged 18 or over, unless it would be contrary to the interests of justice to do so: section 11(1)(a) MCA 1980. There is a power, not a requirement, to do so where the prisoner is aged under 18. This is expressed in Criminal Procedure Rule 24.12(3) as follows:

Where the defendant is absent the general rule is that the court must proceed as if the defendant were present and had pleaded not guilty (unless a plea already has been taken), but the general rule—

• does not apply if the defendant is under 18;
• is subject to the court being satisfied that—
• any summons or requisition was served on the defendant a reasonable time before the hearing, or  in a case in which the hearing has been adjourned, the defendant had reasonable notice of where and when it would resume; and  is subject to rule 24.11(10)(a) (restrictions on passing sentence in the defendant's absence).

Where there is no good reason for non-attendance, it is unlikely to be contrary to the interests of justice to proceed. Indeed, it is in the interests of justice to resolve the summary allegation; not to proceed would be to allow the defendant to frustrate justice. In these situations, prosecutors should invite the court to proceed pursuant to CrimPR 24.12.

Sentence in the magistrates’ court

CrimPR 24.11(10)(a) requires the court to adjourn if the court considers passing a custodial sentence or imposing a disqualification, unless it has already adjourned to give the defendant an opportunity to attend. This reflects section 11(3), (3A) ands (4) MCA 1980.

Prosecutors should ensure that the court adjourns in such situations and ensures the defendant is given an opportunity to attend on a subsequent occasion. If the defendant fails to attend at the subsequent hearing prosecutors should invite the Court to proceed to sentence even if it is considering imposing a custodial sentence or imposing a disqualification.

Prosecutors should note that for summary proceedings, section 122 MCA 1980 provides that, save where expressly required, the defendant shall not be deemed to be absent if legally represented. Prosecutors should ensure this provision is drawn to the court’s attention where a legal representative is present, and it is proposed to proceed.

Either Way and Indictable offences

First hearing in the magistrates’ court

Cases which may be tried summarily or upon indictment (“either way” offences), the court will proceed under sections 17A to 23 MCA 1980. Section 17A (2) MCA 1980 makes clear that the court is required to take a number of steps and that these must be done “with the defendant present in court”. Section 17B MCA 1980 is the exception to this where the defendant is legally represented and has been disorderly before the court, a plea in absence can be taken. If this section becomes relevant to a case prosecutors should ensure the court is reminded of this provision and  should seek to proceed in the defendant’s absence. In the absence of section 17B MCA 1980 being satisfied, the court cannot proceed to determine venue until such time the defendant can attend and be present in court. It is therefore usually necessary for the defendant to attend court where they are charged with an either way offence and this should be communicated to the prison.

In cases which may only be tried upon indictment, the court will proceed under sections 51, 51A, 51B and 51C Crime and Disorder Act 1998 (CDA 1998). These provisions all relate to a defendant who “appears or is brought before a magistrates’ court”. It is therefore necessary for the defendant to attend court and this should be communicated to the prison. An exception to this position was confirmed in R v Umerji [2021] EWCA Crim 598.  This case confirmed that a magistrates’ court has the power to send an absent defendant charged with an indictable only offence(s) for trial in the Crown Court pursuant to section 51 CDA 1988 if they are legally represented.

If the defendant refuses to attend and is not legally represeneted an adjournment should be sought.  See section 17C MCA 1980 and 52(5) CDA 1998 and arrangements made for an effective hearing.  If necessary, prosecutors should request the court make a direction for a video link hearing.   

Plea and Trial Preparation Hearing and Trial in the Crown Court

Criminal Procedure Rule 25.2(1)(b) (trial and sentence in the Crown Court) provides that the court must not proceed if the defendant is absent, unless the court is satisfied that

• the defendant has waived the right to attend, and
• the trial will be fair despite the defendant’s absence.

The concept of waiver applies to arraignment as well as to trial: Kepple [2007] EWCA Crim 1339. Waiver means the defendant knows, or is indifferent to, the consequences of not attending the hearing. This means that it is important to establish that the defendant has been informed of what is to happen at the hearing, establishing any response to this, and in general being satisfied that a defendant has made an informed decision not to attend.

The discretion to start or continue a trial in a defendant’s absence is one to be exercised with great caution and with close regard to the overall fairness of the proceedings: Jones [2002] UKHL 5. It is generally desirable that a defendant is represented.

The judge should have regard to all the circumstances, including the following that can be found in the Crown Court Compendium:

1. the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, and whether the behaviour was voluntary and so plainly waived the right to be present.
2. whether an adjournment would resolve the matter.
3. the likely length of such an adjournment.
4. whether the defendant, though absent, wished to be represented or had waived the right to representation.
5. whether the defendant’s representatives were able to receive instructions and the extent to which they could present any defence. Those instructions might be those received before and after the date on which a defendant refused to attend the trial: Pomfrett [2009] EWCA Crim 1939.
6. the extent of the disadvantage to the defendant in not being able to present an account of events.

7.the risk of the jury reaching an improper conclusion about the absence of the defendant.

8. the general public interest that a trial should take place within a reasonable time.
9. the effect of the delay on the memories of witnesses.

10.where there was more than one defendant, and not all had absconded, the undesirability of having separate trials.

Where there is plain evidence of a deliberate voluntary act which results in non-attendance at trial, it is appropriate to proceed even with a serious allegation and an unrepresented defendant: Smith [2007] Crim LR 325 and Simms [2016] EWCA Crim 9.

Prosecutors should consider whether it is appropriate to seek an adjournment to secure the defendant’s attendance, by force, or whether the court should be invited to proceed in absence.

Sentence in the Crown Court

The court may proceed to sentence a defendant in absence unless Criminal Procedure Rule 25.2(1)(c) applies which states the court must not sentence the defendant to imprisonment or detention unless:  

1. the defendant has a legal representative,
2. the defendant has been sentenced to imprisonment or detention on a previous occasion in the United Kingdom, or
3. the defendant could have been represented under legal aid but is not because section 226(7), (8) Sentencing Act 2020 applies to them.

Prosecutors should ensure that the court are aware of the above provision and only seek to proceed in absence where the above exceptions are met.

Custody time limits

Part 14 of the Criminal Procedure Rules, Rule 14.1 sets out that where the magistrates’ court or Crown Court withhold bail and where bail has been withheld, they can extend a CTL.

Criminal Procedure Rule 14.2(1)(c) provides a judge with the discretion to hear applications to extend a CTL in the absence of the defendant, for example where a defendant refuses to leave a cell.

Prosecutors who seek to make a CTL extension application should argue that it is “just to proceed” where there is no good reason for the defendant refusing to attend, because to do otherwise would be to permit (and encourage) the frustration of justice by simple non-compliance.

Alternatively, and in any case where bail or custody is to be considered, the prosecution may argue waiver, where it is established that the defendant knows or is indifferent to the fact that the court proposes to consider bail. A defendant who refuses to attend should nonetheless be offered the opportunity to make representations. Prosecutors, through the court, should establish what the defendant has been told and what has been communicated in response  to inform any hearing considering bail in the defendant’s absence.

For further guidance regarding CTLs prosecutors should refer to the CPS Legal Guidance on Custody Time Limits.

Re-review

Paragraph 3.6 of the Code for Crown Prosecutors states that review of cases is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops.  This includes the review of the prospects, in conjunction with the court and HMPSS, of the prisoner attending court in the future. A change in circumstances or new material coming to light will merit further review. However, the bringing of a prosecution involves the Full Code Test being met and, if the evidence remains the same, the fact that the defendant remains in custody on proceedings which have not progressed through the defendant’s non-compliance is unlikely to amount to a public interest factor tending against a prosecution. Indeed, it may be said that there is a compelling public interest in continuing the prosecution because of the public interest in ensuring that a defendant cannot frustrate justice through non-compliance. When sentencing, a court must have regard to delay, but where delay is solely or primarily attributable to the defendant’s non-compliance that is a factor the court may take into account: Rummun v State of Mauritius [2013] UKPC 6. Prosecutors should invite the court to disregard delay as a mitigating factor where it is because of the defendant’s conduct.