The jurisdiction to prosecute an individual in his or her absence is well established: the court must not proceed unless it is satisfied that the defendant has waived the right to attend, and that the trial will be fair despite the absence (see r.25.2 of the Criminal Procedure Rules 2015). The leading case of R v Jones [2002] UKHL 5 then sets out principles to take into account in deciding whether that test is met, and makes clear that the discretion to proceed in absence is one to be exercised with great caution.
But how do these provisions apply, if at all, to the prosecution of a corporate defendant in its absence? If a company does not cooperate with any prosecution, what shape might any trial take?
This is unlikely to arise in the case of a large company, with obvious concerns regarding reputational damage. However, smaller businesses, especially if they are no longer trading or would struggle to afford private representation, may be more tempted not to engage with proceedings.
Section 33 of the Criminal Justice Act 1925 sets out the procedure at arraignment where a corporate defendant fails to attend (emphasis added):
33 Procedure on charge of offence against corporation.
…
(3) On arraignment of a corporation, the corporation may enter in writing by its representative a plea of guilty or not guilty, and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty.
…
Unlike r.25.2 Crim PR 2015, section 33 appears to create a mandatory provision: that the trial shall proceed notwithstanding the absence of a representative for the company. Similar provisions for proceedings in the Magistrates’ Courts are found at section 46 and paragraph 3 of Schedule 3 of the Magistrates’ Courts Act 1980 – and they even explicitly override the absent company’s right to elect jury trial.
But does this oblige the court to go on to hear the full trial in absence, or simply to treat the defendant as if it had been arraigned and pleaded not guilty? It is suggested that the latter is correct, for two reasons – firstly, there is nothing to suggest that the requirement that the trial “shall proceed” equates to a requirement that it proceed to the bitter end. The word “trial” is not defined in the 1925 Act, but where it appears in other pieces of legislation it boasts varying definitions – for the purpose of custody time limits it begins when a jury is sworn (s.22(11A) Prosecution of Offences Act 1985); for the purpose of timetabling under s.77(3) SCA 1981 the trial begins upon arraignment; for the purposes of preparatory hearings the trial begins when that hearing commences (s.30 CPIA 1996). The “trial” in section 33 could therefore encompass decisions of case management and whether evidence can fairly be called against the defendant in its absence.
Secondly, the provisions of a 1925 Act should be read in light of more modern case law concerning the right to a fair trial, not least Jones itself and the requirement that the prosecution prove that the defendant knows of, or is indifferent to, the consequences of being tried in absence and without legal representation (see also R v O’Hare [2006] Crim LR 950). If a company is not voluntarily absent, a fair trial is unlikely to follow.
However, this reading should not tempt company directors to turn a blind eye to an impending prosecution. The words of Lord Bingham at p.12 of Jones set out the policy reasons underpinning the jurisdiction to proceed in absence:
“Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist….If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against [any co-]defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.”
The courts are unlikely to allow unscrupulous companies to kibosh any trial by simply not turning up.
These considerations must apply even more strongly to companies than to individuals, since companies cannot be “apprehended”, or indeed bailed, remanded in custody or generally shepherded into trial. The courts are unlikely to allow unscrupulous companies to kibosh any trial by simply not turning up.
So, assuming that the court finds that the trial can proceed in the company’s absence, does all of the evidence need to be called live?
The position is probably little different from that of a human defendant. Both the provisions of section 9 of the Criminal Justice Act 1967 and the overriding objective – in particular the requirement that evidence, whether disputed or not, be presented in the shortest and clearest way (r.3.2 (2)(e)) – allow for evidence to be read in appropriate circumstances.
Finally, as Martyn Bowyer has pointed out here, an absent company would probably escape an adverse inference direction if the trial did go ahead.
