**UPDATE** - July 2016

Sentencing in Absentia

There have been recent developments regarding the sentencing of an accused in their absence. However, whether these developments are positive or not remains to be seen. The law in relation to sentencing in one’s absence was previously governed by the decision of Jason O’Brien v District Judge John Coughlan. In that case, a breach of fair procedures was found in circumstances where a hearing in relation to road traffic matters was conducted in the absence of the accused, however within the accused’s knowledge, and Mr O’Brien was convicted in his absence. In O’Brien however, the custodial sentence imposed was quite substantial in that 5 months imprisonment was imposed on Mr O’Brien by Judge Coughlan. Mr O’Brien judicially reviewed the District Court Judge’s decision to sentence Mr O’Brien in his absence and it was held that the District Court Judge erred in law in sentencing Mr O’Brien in his absence to a substantial sentence of 5 months in custody. 

However, more recently and in stark contrast to O’Brien, the decision of Mervin White v District Court Judge Watkin indicates that sentencing someone in their absence is not a breach of fair procedures wherein the term of imprisonment imposed is not a substantial one (substantial having been somewhat defined as at least 5 months if O’Brien is to be followed). In this case, the District Court Judge having remanded Mr Whites case in his absence some two times prior, Mr White having already pleaded guilty, indicated at all times that if Mr White was not present on the next occasion, she would proceed to sentence him in his absence.
By way of Judicial Review, Mr White contended that Judge Watkin erred in law and acted contrary to the principles of fair procedures and sought various reliefs including having his sentence quashed. The High Court however held that the District Judge did not err in law and the Court refused all reliefs sought by the Mr White.

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As it stands it would appear that where a Judge is considering a substantial prison term as a means of punishment following conviction, the appropriate order is to issue a bench warrant to compel the defendant’s attendance in court before doing so. In circumstances where an accused person is aware of their trial date and that such knowledge is reliable, such as the accused person’s presence in the court when the date of hearing was fixed, the should be no need to adjourn the trial. Whilst it would appear that there is no error in law in proceeding to trial and reaching a conclusion of guilt or innocence, arguably a different consideration ought to arise where a more than short term custodial sentence is envisaged in the mind of the District Judge. Further, where the sentencing judge intends to impose a custodial sentence for an offence that would not ordinarily attract such a sentence, doing so without making all efforts to secure the attendance of the accused person amounts to a breach of fair procedures and a breach of the requirements of constitutional justice.

Although the White decision indicates that sentencing in absentia is not a breach of fair procedures, attention should be drawn to different circumstances wherein Mr White had pleaded guilty to the charges before the court, received warnings from the District Judge as to the consequences should he fail to attend on the next occasion and in no uncertain terms indicated that she would proceed to sentence in his absence. Furthermore, the length of the custodial sentence imposed in White, in contrast to that imposed in O’Brien cannot go un-noticed. It would appear that a “brief custodial sentence” may not give rise to the requirement to attempt to secure the attendance of the accused person even by way of a bench warrant. Such exercises are not merely theoretical but should be implemented in practice in the application of justice to ensure due process and fair procedures.