WHILST the discretion of a trial judge to continue a trial in the absence of one of the accused through illness should be exercised sparingly, an accused who challenged the exercise of that discretion had to show that there was a real rather than a speculative risk of prejudice to his defence if the trial continued.
The Court of Appeal dismissed the appeals of Colin Pearson, Barry Anthony Corbett, and Melvyn Lohse against their convictions at Wood Green Crown Court of conspiracy to defraud.
The allegation against the appellants was that they had defrauded Philpot Dairy Products Ltd and the Intervention Board Executive Agency by falsely representing that consignments of butter and milk powder were intended for export to Poland, thereby obtaining a subsidy, whereas the goods were in fact exported to Spain.
After his evidence had been completed, Corbett had been taken ill, and had thereafter been absent from the trial. The appellants appealed against their convictions on the ground that the judge had been wrong to refuse to discharge the jury because of Corbett's absence.
Jeremy Carter-Manning QC (Registrar of Criminal Appeals) for Pearson; Peter Heppel QC(Registrar of Criminal Appeals) for Corbett; Brian Higgs QC for Lohse; Stephen Kramer QC (Crown Prosecution Service) for the Crown.
Lord Justice Roch said that the judge had refused applications to discharge the jury. He did not consider it proper to require Corbett to attend the trial, but concluded that he would suffer no prejudice if his representatives were given adequate time to report to him on the evidence still to be given by his co-accused and to take instructions about cross-examination. The Crown offered to accommodate Corbett near to the court, but he declined the offer and remained in Brighton where he lived.
Counsel for Corbett had submitted that a defendant had a right to be present at his trial. He relied on the decision in R v Howson (1982) 74 Cr App R 172 in which had been said that the judge had a discretion to continue a trial in the absence of one of the accused through illness, but that it was "a discretion which we would expect to be sparingly exercised and never if the accused's defence could be prejudiced by his absence".
Consideration of that ground of appeal should begin with a reference to R v Kellard  2 Cr App R 134, which highlighted the public interest that there should not be mistrials in long fraud cases and that such cases should be heard with reasonable expedition. A point made by counsel for the Crown, which accorded with the experience of members of the court, was that the problem posed by defendants being taken ill during fraud trials was one which was being met increasingly by the courts.
The court would accept the statement of principle in R v Howson, subject to the qualification that what was being referred to was a real risk rather than a speculative risk of prejudice to the defence of the accused person who had been taken ill, a risk that could not be overcome by taking the appropriate steps. The principle might be better stated as: "This is a discretion which we would expect to be sparingly exercised and never if the accused's defence will be prejudiced by his absence".
It could not be said in the present case that justice had not been seen to be done. The judge had not insisted on Corbett's presence at the trial. If the fact that he had remained at a substantial distance from the court had caused difficuties for those representing him, those were difficulties of his own making.
No prejudice to Corbett's case created by his absence could be detected, and it followed that there had been no prejudice to any other defendant. The judge had exercised his discretion properly.