Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In Khan, R. v [2021] EWCA Crim 1526, October 21, 2021, the Crown sought a “restraining order” against the accused.  The hearing proceeded in the absence of the accused, who arrived late.  The circumstances of were described by the Court of Appeal for England and Wales, in the following manner (at paragraphs 7 to 9):

The hearing on 18 September 2020 was listed at 10am. A full transcript of the proceedings has been obtained. At 09.56, the Applicant emailed the court to advise that his train was slightly delayed. Shortly after, he also telephoned the court office but did not provide an estimated time of arrival. When the case was called on at 10am, the Applicant was not present. The Judge observed: “I am slightly surprised that he is not here. He is normally fairly keen to have his say.” The clerk of the Court informed the Judge that an email had been received from the Applicant stating that he had been delayed. The Judge adjourned the hearing, sitting again shortly before 11am. The Applicant had still not arrived, and no further indication had been received as to his likely arrival time.

The Prosecution initially sought a warrant for the Applicant’s failure to surrender to bail. However, the Judge invited representations as to whether he should proceed in the Applicant’s absence. The prosecuting advocate agreed that there was “no reason why [the court] should not proceed [in his absence] because he knows very well of today’s hearing”. The Judge referred to R -v- Jones [2003] 1 AC 1 and identified that, in deciding whether to proceed in the Applicant’s absence, he had to have regard to (1) the circumstances of the Applicant’s behaviour in absenting himself, in particular whether the behaviour was voluntary, (2) whether an adjournment would resolve the matter, (3) the length of any adjournment, (4) whether the Applicant wished to be represented, (5) the extent of any disadvantage of the defendant not being able to present his account of events, and (6) the risk of the court reaching an improper conclusion. There was a general public interest in the matter being resolved in a reasonable time.

Without hearing any further submissions from the Crown, the Judge concluded that the Applicant was aware that the Prosecution intended to apply for a restraining order and that 70 minutes was not a “slight delay”. He therefore concluded that the Applicant had waived his right to be heard and the matter should proceed in his absence. He added that “if he turns up during the hearing, we will deal with it, as and when”.

The accused appealed, seeking to have the restraining order quashed.

The appeal was allowed and the restraining order quashed.  The Court of Appeal concluded that the hearing was “procedurally unfair” (at paragraphs 25 to 29):

We have some sympathy for the Judge, who had dealt with previous hearings with the Applicant. However, we have reached the conclusion that the hearing on 18 September 2020 was procedurally unfair. The decision whether to proceed in a defendant’s absence must be taken cautiously. The Judge correctly identified the authority of Jones, but he did not invite the prosecution’s submissions, or apparently assess the relevant factors before deciding to proceed in the defendant’s absence. Frustrating though the delay was, the Applicant had communicated to the Court that he was on his way. The Court was about to hear evidence in support of the application for the restraining order. The Defendant was not represented. Proceeding in his absence meant, first, that he would not hear the prosecution’s evidence; second, he would be unable to cross-examine the prosecution witnesses; third, he would not have the opportunity to present any evidence (including giving evidence himself) in his defence; and fourth, he would not be able to make submissions to the Judge as to whether a restraining order was necessary, and, if so, in what terms and for what period.

As was clear from his police interview, the key points of the Applicant’s defence were (a) he denied making all the relevant telephone calls; and (b) he claimed that his email address had been accessed without his consent. As such, there was a substantial disadvantage to the defendant in proceeding in his absence. As became clear during the hearing of the appeal, the Applicant’s case was not that his email account had been “hacked”, as that term is conventionally understood, but that the complainant had accessed his email account by using his password without his permission. Although there was no clear indication of when the defendant was likely to arrive, the likely adjournment was going to be a matter of hours not days.

Whilst, ultimately, it will be for the judge to weigh the relevant factors identified in Jones and, if fairly performed, an appeal court is unlikely to interfere with the judge’s assessment, the Judge did not apparently carry out an assessment of the factors, and gave no reasoned decision, before deciding to proceed in the Applicant’s absence.

This unfairness was compounded, after the Applicant finally arrived, by the Judge not giving him a fair opportunity (a) to be told what had happened; and (b) to apply to the Judge to reopen the application for a restraining order. The Applicant was a litigant in person who presented with possible mental health issues. One of the problems of proceeding in the defendant’s absence was that, when he did arrive (as was clearly envisaged as a real likelihood), he would not know what evidence had been given against him. His ability, therefore, to respond to that evidence or make submissions to the Court on it was significantly impaired. The Judge dealt with the issue of potentially reopening the case in little more than three lines of the transcript. He did not explain to the Applicant that he could apply to the Court to reopen the case, or give him a fair opportunity to do so. The Judge summarily refused to reopen the case and did not give reasons for the refusal. As a result, a restraining order was imposed upon the Applicant after a hearing that was procedurally unfair.

The nature of the procedural unfairness meant that the Applicant had not had an opportunity (a) to cross-examine the witnesses called in support of the application for a restraining order; (b) to advance evidence in his own defence (including giving evidence himself and being cross-examined); or (c) to make submissions on whether the evidence demonstrated that a restraining order was necessary, and upon the terms and duration of any order. In short, the Applicant did not receive a fair trial.