The applicant having been discharged of offences under the 1988 Act, the Court nevertheless imposed an order on him in his absence under the 1997 Act prohibiting him from contacting the complainant for a period of 10 years. He sought to appeal from that order.
Held: The procedure had indeed been 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.’ The order was set aside but with an order for a rehearing.
Mr Justice Nicklin
[2021] EWCA Crim 1526
Bailii, Judiciary
Malicious Communications Act 1988 1(1)(a), Protection from Harassment Act 1997 5A
England and Wales
Citing:
Cited – Regina v Jones (Anthony William) HL 20-Feb-2002
The defendant absconded, and did not appear for his trial despite several listings. The trial proceeded in his absence entirely. After arrest, he appealed, saying that he had not had a fair trial.
Held: It was not suggested that he did not . .
Cited – Major, Regina v CACD 1-Dec-2010
The appellant had been charged with an offence of putting a person in fear of violence through harassment, contrary to section 4 of the 1997 Act. She was acquitted of count 1, but the jury could not agree on its verdict on the alternative offence of . .
Cited – Baldwin, Regina v CACD 14-May-2021
This appeal raises the issue of whether a post acquittal restraining order made under section 5A of the 1997 Act was properly made against the Appellant after he had been acquitted of offences of making threats to kill, assault occasioning actual . .
Cited – Serafin v Malkiewicz and Others SC 3-Jun-2020
‘What order should flow from a conclusion that a trial was unfair? In logic the order has to be for a complete retrial. As Denning LJ said in Jones -v- National Coal Board [1957] 2 QB 55 . . ‘No cause is lost until the judge has found it so; and he . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 December 2021; Ref: scu.669234