Legal Update: Revisiting trial in the absence of a defendant

1 February 2018

Smith v Royal Society for the Prevention of Cruelty to Animals [2017] (Unreported)

A recent unsuccessful appeal by way of case stated against a District Judge’s refusal to adjourn a hearing, despite medical evidence that defendants were unfit to attend, is a reminder of the key principles that apply when courts consider proceeding in the absence of a defendant.

Key cases on this issue

The right to a fair trial is central to the criminal justice system and is enshrined in Article 6 of the European Convention on Human Rights, which was ratified by the UK in 1951 and brought directly into British Law by the Human Rights Act 1998. From this Article 6 Right has been extrapolated the right for an individual to be present at their trial hearing. This right is not, however, unqualified.

In R v Bolton Justices Ex parte Merna [1991] 155 J.P. 612, Crim LR 848, the Divisional Court endorsed the position that the discretion to proceed in a defendant’s absence should be exercised judicially, providing a fair opportunity for the defendant to be present and call witnesses and/or give evidence. In most cases where the defendant claims to be unable to attend, a written explanation from a doctor will suffice as evidence that the defendant is unfit to attend, such that the hearing should be adjourned. A claim of illness with professional support should not be rejected without the court first satisfying itself that it is proper to do so, and that no unfairness will result. The test is always fairness, with an emphasis on the importance of the defendant being able to attend their hearing, and on the court exercising its discretion to adjourn hearings to the benefit of a defendant who is genuinely unable to attend.

This position was something that the Appellant attempted to utilise in R v Ealing Magistrates' Court, Ex Parte Burgess [2001] 165 JP 82, Crim LR 855. The Appellant had provided medical evidence that he was not well enough to attend court, and several times the court had adjourned the hearing in line with the above principles. However, evidence then came before the court that, in the interim, the Appellant had been attending another court to undertake private prosecutions against several police officers. Consequently the court refused a further adjournment and proceeded in the Appellant’s absence. It emphasised both the Appellant’s appearance before other courts and articulacy and effectiveness in putting forward arguments on the question of adjournment. The Divisional Court held that the case of Merna did not create hard and fast rules that had to be followed in all circumstances, but rather gave useful guidance. The court has a discretion to be exercised so as to achieve a fair trial, and as part of that a defendant is entitled to a fair, but not an unlimited, opportunity to be present, otherwise the court could never proceed in the defendant’s absence and some trials would be postponed indefinitely. The Divisional Court held that in this case the court had been entitled to proceed in the Appellant’s absence.

Smith v RSPCA

The above principles were revisited in the recent case of Smith v Royal Society for the Prevention of Cruelty to Animals (unreported). In that case several defendants had been charged with animal cruelty offences. During the trial, one defendant committed suicide. The Judge adjourned the hearing for several months to allow the remaining defendants time to recover emotionally. In the month before the re-listed hearing the court received letters from a GP stating that the defendants were continuing to struggle to cope following the death and were suffering from a variety of symptoms. On the day of the hearing the defendants did not attend and a further adjournment was sought. The district judge held that the GP’s letters did not comply with the procedural requirement that medical certificates must state clearly how the relevant medical issues affect the defendants’ ability to stand trial, and that it was in the interests of justice to conclude the matter sooner rather than later. The application to adjourn was renewed and the GP was invited to give evidence as to the defendants' mental states. In light of this evidence, the district judge was not satisfied that the defendants were in fact unfit to continue with the trial, so the hearing proceeded and two defendants were found guilty of 12 charges. The defendants appealed on the question of whether the district judge had correctly exercised the discretion to refuse the adjournment and whether that refusal had denied the defendants a fair trial.

Mr Justice Choudhury held that the district judge had been entitled to conclude that the medical evidence in this case did not establish unfitness. The decision in Merna did not mean that a court's hands were tied when it was presented with credible medical evidence. The court was entitled to consider whether that evidence genuinely demonstrated unfitness. The district judge had summoned the GP and analysed the evidence. The GP’s clear view was that the trial would be very difficult for the defendants, but the district judge was entitled to conclude this did not amount to unfitness, particularly as the prosecution case had closed, the defendants had been represented, and the scope of the remaining issues had been narrow. The district judge had the potential unfairness to the defendants in mind, applied the correct test and did not deny the defendants a fair trial.


Smith v RSPCA is a case that is factually distinct from the Burgess case; the latter being a case where the defendant was intentionally attempting to manipulate court procedure in his favour, the former being a case where defendants that were genuinely suffering were still deemed fit to attend trial despite their distress being supported by the evidence of a medical practitioner. This case therefore becomes a useful gauge, moving forward, in predicting how the courts will address the subject of defendants being unfit to stand trial; a large number of defendants that request adjournments due to medical unfitness will genuinely be experiencing medical issues as in Smyth v RSPCA, as opposed to the more unusual circumstances that arose in Burgess.

Further information

Lawyers from Kingsley Napley are regularly blogging about a range of legal issues, including public and criminal law matters. Follow our Public Law and Criminal Law blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact a member of our Public  Law or Criminal Law team.’

This blog was written by Aaron Ramdas-Harsia, Paralegal, Criminal Litigation with input from Nick Wrightson, Senior Associate, Public Law, Adam Chapman, Partner, Public Law and Sandra Paul, Partner, Criminal Litigation

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