Rex v Lee Kun: CCA 1916

Accused must hear and understand the proceedings

A judge, from the moment he embarks upon a trial until he is functus officio that trial, is under a duty to ensure that both the process and substance of the trial is fair, and that both are duly compliant with appropriate principles. Lord Reading CJ said: ‘[t]here must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused’. The presence of an accused person in criminal proceedings means not merely that the defendant may hear the case against him but also that he is shown to understand the proceedings and has the opportunity to make representations
‘The more difficult question arises when an accused foreigner, ignorant of the English language, is defended by counsel and no application is made to the Court for the translation of the evidence. There is no rule of law to be found in the books on the subject, and as a result of inquiry which we have made since the argument, it has become clear that the practice of the Courts in this respect has varied considerably during the last fifty years. It was stated at the bar by counsel for the Crown that the practice has been for the Court not to require the translation of the evidence unless the accused or his counsel applied for it. There is no doubt that this practice has been followed by some judges; whereas other judges have inquired at the outset of the trial whether the accused or his counsel wished the translation to be made, and if the answer was in the negative they have permitted the trial to proceed without having the evidence interpreted to the accused. Again, some judges have always insisted upon the translation except when the accused or his counsel stated that he did not wish it, and other judges have required translation notwithstanding such a statement. The only practice in this respect upon which there has been uniformity is that whenever any desire has been manifested by the accused or his [or her] counsel for the translation it has always been permitted.
We have come to the conclusion that the safer, and therefore the wiser, course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him [or her] except when he or counsel on his [or her] behalf expresses a wish to dispense with the translation and the judge thinks fit to permit the omission; the judge should not permit it unless he [or she] is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him [or her] at the trial.
To follow this practice may be inconvenient in some cases and may cause some further expenditure of time; but such a procedure is more in consonance with that scrupulous care of the interests of the accused which has distinguished the administration of justice in our criminal Courts, and therefore it is better to adopt it. No injustice will be caused by permitting the exception above mentioned.’
Lord Reading CJ said: ‘there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused’.


Lord Reading CJ


[1916] 1 KB 337, (1916) 11 Cr App R 293


England and Wales

Cited by:

CitedStanford v United Kingdom ECHR 11-Apr-1994
A defendant’s difficulty in hearing the case because of a screen erected to protect the identity of witnesses did not vitiate the trial or make it unfair. The right to a fair trial included the right to be present and in a position to follow the . .
CitedRex v Smellie CCA 1919
The defendant was accused of mistreating his eleven year old daughter. He was ordered to sit upon the stairs leading to the dock, out of her sight, in order to avoid her being intimidated.
Held: A judge could, using the courts own powers to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Natural Justice

Updated: 04 May 2022; Ref: scu.539115