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Law report: Appeal would be heard in absence of absconder

The appeal against a confiscation order of a convicted drug trafficker who had absconded from prison and was still at large would, exceptionally, be listed for hearing in his absence.

Regina Gooch; Court of Appeal (Criminal Divison) (Lord Justice Buxton, Mr Justice Maurice Kay and Judge Coles) 16 January 1998

On an application for directions, the Court of Appeal ordered that the appeal of Malcolm Gooch against a sentence of 11 years' imprisonment imposed for being knowingly concerned in the importation of a controlled class B drug, and against a confiscation order in the sum of pounds 650,000, be listed for hearing in his absence.

The appellant's appeal against conviction had been dismissed in May 1995, when his appeal against sentence had been adjourned. Before the case could be relisted, the appellant absconded from prison, and he remained at large.

David Lederman QC (Registrar of Criminal Appeals) for the appellant; David Barnard and Barry G. Gregory (HM Customs and Excise) for the Crown.

Lord Justice Buxton said that the Crown sought the determination of the outstanding appeal against sentence, because by section 11 of the Drug Trafficking Offences Act 1986 it was unable to enforce the restraint orders and other orders which it held in respect of that part of the appellant's property representing the sum of pounds 650,000 ordered to be confiscated by the judge.

The court had been referred to R v Flower [1965] 3 All ER 669, which made it clear that if an appellant was not present when his appeal was called on because he had escaped, it was the normal practice of the court either to adjourn the appeal or dismiss it according to the justice of the case. In that case, however, the court had decided to hear the appeal in the appellant's absence because, although he was unrepresented, all the points raised on his appeal had been raised and canvassed by counsel for his co-appellants.

It followed from Flower that there was no rule that an appeal could not be heard in the absence of the appellant, even where his absence could in a general sense be said to be contumacious.

On the present appeal, neither further instructions nor the presence of the appellant were required. In the view of the court, without in any way binding the court which would eventually have to deal with the matter, there was a point raised on the appellant's behalf in respect of the confiscation order which merited substantive consideration.

The prosecution argued that the appellant's conduct was contumelious, and on an analogy with civil proceedings he should not be allowed to proceed with his appeal where he was, if not directly in contempt of court, behaving in a way which was inconsistent with the orders of the Crown Court. That analogy was not, however, exact. The appellant's escape did not affect the conduct of the present proceedings, however much it might be a refusal to accept their possible outcome.

Furthermore, the rule in the civil jurisdiction that a contemnor would not be heard was not absolute, and should be exercised only exceptionally. Gordon v Gordon (1904) Probate Reports 163 demonstrated that where complaint was made of a fundamental matter with regard to an order, the court would not necessarily treat the fact that the order had been disobeyed as a reason for not hearing the complaint. Those considerations must apply strongly in a case where what was in issue was a matter of criminal punishment, and where the appellant sought to say that the punishment should not have been imposed at all, or not in the form or to the extent that it had been imposed.

It must be emphasised that the present case was exceptional. An adjournment would be very unsatisfactory from all points of view, and the appeal would therefore be listed for hearing. Other persons who absconded from prison should not, however, assume that any outstanding appeal would be dealt with in a similar way.