Prison: Adjudications put before court without defendant having chance to make submissions
The Court of Appeal has quashed the conviction of a man who dispensed with counsel on the second day of trial after finding he was then denied a fair hearing.
Lord Justice Holroyde said Anthony Reid’s decision was “intemperate and unwise”, but the trial judge “lost sight of the fact” that he was still represented by solicitors and entitled to be advised by them.
In R v Reid [2024] EWCA Crim 308 – from February but only just published – Holroyde LJ said it was “very difficult to think that the trial would have proceeded in anything like the manner it did” if Mr Reid had not become unrepresented.
Mr Reid was convicted in December 2021 by Her Honour Judge Bacon KC at Norwich Crown Court of assault causing actual bodily harm, after throwing boiling water at a fellow prisoner at HMP Wayland. He was sentenced to three years.
Holroyde LJ said that, on the first day of the trial, Mr Reid became “dissatisfied” with defence counsel’s conduct of the case. As a result, he “declined to speak to trial counsel”, who was allowed to withdraw the following morning.
Holroyde LJ said there were “at least three substantial problems” about the way in which the issue of representation was dealt with at the trial.
It was “unfortunate” that Mr Reid was “very quickly required to make a stark choice between representation by counsel in whom he said he had lost confidence, and representing himself”.
This was coupled with a warning from HHJ Bacon that she would not permit Mr Reid to disrupt the trial – “a warning for which, in our view, there was at that stage no justification”.
He was given “no chance to say whether he wished to be represented by different counsel, as in fact he did”.
The trial judge “adopted a similarly peremptory approach” when she was told that the defendant’s solicitors would be able to instruct fresh counsel and resume proceedings the following day.
“The judge immediately accepted the suggestion of the prosecution that there would inevitably be an application to start the trial anew, and that any such application would inevitably be granted.
“There appears to have been no reconsideration of that decision when the subsequent email from the solicitors indicated that they only sought an adjournment until the following morning.”
Most importantly, HHJ Bacon seemed to have “lost sight of the fact” that Mr Reid was still represented by solicitors and entitled to be advised by them.
The judge,“at a very early stage”, asked whether Mr Reid had been able to speak to his solicitors on the phone and was told that he had. But “nothing more was done”, even though the solicitors remained on the record until the fourth day of the trial.
That was when they were allowed to withdraw citing professional embarrassment, without Mr Reid having the chance to make submissions on this.
Up until then, a number of important rulings were made. “It does not appear that the applicant was ever told in terms that he was entitled to seek the advice of his solicitors,” Holroyde LJ said.
“Nor was any attempt made by the judge to require a representative of the solicitors to attend the hearing so that he or she could advise the applicant.”
Holroyde LJ said the jury should have been directed not speculate to about why the defendant had chosen to dispense with counsel, and “bear in mind the difficulty” he might face in representing himself.
The judge outlined further flaws in the conduct of the trial, which included allowing the prosecution to “refer indiscriminately” to Mr Reid’s large number of previous convictions.
HHJ Bacon allowed the prosecution to cross-examine Mr Reid about a record of prison adjudications that were obtained during the trial without asking him if he had any submissions to make about this.
During Mr Reid’s cross-examination, the judge observed that he had made a number of references to what he had said to his lawyers. The judge asked if he was waiving his legal professional privilege, and he said he was.
But, the Court of Appeal found, no consideration was given to whether he “truly was waiving legal professional privilege in respect of the entire contents of his solicitors’ file, or only in respect of specific matters”.
HHJ Bacon also allowed Mr Reid to be referred to in cross-examination as having been assessed as “dangerous”, because of his indeterminate prison sentences for public protection, while refusing to allow him “to give the explanation he wanted to give in answer to that line of cross-examination”.
HHJ Bacon’s “repeated assertions” that two separate judges had found Mr Reid to be dangerous were “inevitably highly prejudicial”, particularly when combined with his prison record and “the frequent assertions by the prosecution” that he was trying to “manipulate the trial process to his own advantage”.
The Court of Appeal concluded that Mr Reid did not receive a fair trial. “Whatever rulings might have been made, if all matters had been considered and addressed as they should have been, it is impossible to regard this conviction as safe.”
It quashed the conviction and refused the request for a retrial, given that Mr Reid had “long since served the entirety of the sentence imposed”.
Mr Justice Morris and Mr Justice Bryan contributed to the judgment.
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