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REPORT OF THE SUMMARY JUSTICE REVIEW COMMITTEE: SUMMARY OF RESPONSES TO THE WRITTEN CONSULTATION - FINAL REPORT
CHAPTER TEN SUMMARY CRIMINAL PROCEDURE (iii): TRIAL IN ABSENCE
INTRODUCTION
10.1 The Report detailed proposals relating to an extension to the use of trial in absence in summary cases. The written response form asked:
"Do you agree with the proposals to extend the use of trial in absence?"
IN FAVOUR OF EXTENDING THE USE OF TRIAL IN ABSENCE
10.2 Only a minority of responses welcomed the idea to extend the use of trial in absence. Most of those who welcomed the idea did so with the proviso that the safeguards detailed in the Report were put in place. ACPOS agreed that the proposal to extend trial in absence, tempered by the significant safeguards suggested, would balance the respective rights of accused parties, victims, witnesses and criminal justice agencies. Moray Council also agreed with the proposal, subject to appropriate safeguards, as did East Ayrshire Council.
AGAINST EXTENDING THE USE OF TRIAL IN ABSENCE
10.3 Most responses (including those from solicitors, the Association of Scottish Police Superintendents, JPs, Glasgow District Court and Justice of the Peace Committees) were concerned about the proposals regarding trial in absence. They believed that the proposals would lead to agents finding it difficult to represent adequately an absent accused in the district court, and consequently that the interests of justice would not be served.
10.4 Respondents noted that provisions for trial in absence for certain minor offences already existed and were little used because it was generally perceived as an unsatisfactory way of proceeding. The Scottish Law Agents' Society felt that the circumstances in which trial in absence should be considered are so restricted that it was actually not worth considering at all.
10.5 Consequently it was stated that these proposals should be restricted to the exceptional cases of accused persons who had a history of failing to appear in court, since in the normal course of events justice must be seen to be done. Many felt that on these recommendations the interests of justice were being put to one side simply to speed up the process.
10.6 A number of respondents also made the point that there could be many valid reasons for failure to attend. Consequently, extending trial in absence procedures and trying to ensure that courts start on time could, it was believed, lead to chaos. Many felt that more time and money should instead be spent trying to understand the reasons why accused persons fail to turn up.
10.7 Conversely, such respondents felt that if an accused person has an acceptable reason for failing to attend (e.g. if he is run over on the way to the court) then his rights would dictate that the trial be postponed.
10.8 The Sheriffs Principal stated that non-attendance is also linked to the failure to enforce warrants. They believed that if it was known that warrants issued by the court would be enforced without delay, fewer accused persons would be likely to fail to appear for trial.
10.9 The Scottish Legal Aid Board made the following point:
"Any legal aid savings which may result from this could be negated by a potential increase in the number of appeals for diets to rehear the case. The Report also recommends that it should be competent to have a summary trial in the absence of the accused, with the court having the discretion to appoint a solicitor. Without some form of automatic criminal legal aid to cover this, it is not clear who would meet the costs for providing such a solicitor appointed by the court."
10.10 A minority of respondents requested that if the recommendations relating to trial in absence were implemented, defence agents should be given the right to withdraw from acting, even when they had previously received instructions and were in receipt of a Legal Aid Certificate. If not, the solicitor could be placed in a difficult position, particularly if at some subsequent date there was to be an appeal on the grounds of defective legal representation.
10.11 In a similar vein, a minority of respondents wondered how a trial in absence could take place in circumstances where counsel or the solicitor instructed had withdrawn. Although the Report recommended that the court should not be required to appoint a solicitor when the accused is unrepresented, but should have the power to do so, respondents queried how a trial in absence would proceed in such circumstances? They also asked who, if anyone, would query whether evidence was admissible or make submissions on behalf of the accused.
10.12 Some were particularly concerned that solicitors might be expected to proceed to trial in the absence of an accused, as this could create the risk of an appeal grounded on defective legal representation. A solicitor brought in to defend an absent accused at trial would not have received instructions, and would not know what issues the accused would have wanted to raise.
10.13 In addition, the proposed mechanism whereby those who had their case tried in absence could apply to have the hearing overturned illustrated to some respondents that there were already identifiable defects within the Report's recommendations.
10.14 The Glasgow Bar Association was strongly opposed to any proposal to extend the use of trial in absence. It felt that under European Convention on Human Rights (ECHR) provisions relating to a fair trial it was essential that the accused be present. The District Courts Association also referred to Article 6 of the ECHR, emphasising the right to a fair and public hearing.
10.15 The Sheriffs' Association made the point that trials in absence were a matter already covered not only in the Criminal Procedure (Scotland) Act 1995 but also in the Criminal Procedure Amendment (Scotland) Act 2004:
"Again, as in sentence discounting, this is a matter in which legislation has superseded the thinking of the McInnes Committee and that legislation should be allowed to proceed".
Identification of an absent accused by photograph
10.16 This issue also caused a great degree of concern amongst those who opposed the recommendations on trial in absence. Many feared that it would be easy for confusion to arise. Moray Council, although agreeing in principle to trial in absence, expressed concern about the likely efficacy of photographic evidence to establish the identify of an offender:
"Perhaps if such evidence were to be relied upon, the photograph being taken at the time when the accused was charged, it might be possible to ensure that relevant witnesses were shown the photograph and identified the witness from that photograph at the point when their initiating statements were taken, rather than relying on this occurring on the day of the trial. At that point, failing photographic identification, provision could still be made for, for example, video evidence of identification to be obtained.
10.17 It was also suggested by one confidential response that identification by photograph would require the Crown to keep photographs of all accused, and due to administrative errors there could be a conviction using the wrong photographs.
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