A Trial that begins with an empty dock is rare. A Trial that begins with an empty dock and ends in acquittal is rarer still. That is what happened in a complex eight-day fraud trial at Isleworth Crown Court that concluded last Friday, when Andy’s client was tried in his absence and acquitted by the Jury in respect of each of the Fraud and Money Laundering counts that he faced.
In this article, Andy Rootsey reflects on his client’s acquittal and considers the circumstances that led to the Court proceeding to Trial in absentia and sets out the law that governs applications to proceed to Trial in a defendant’s absence.
The allegations in outline
This case primarily concerned an alleged large-scale fraud by the defendant, said to exceed over £500,000, against a subsidiary of a global multinational corporation (the company), by means of his ordering mobile phones from a mobile network provider and charging them to what was called a “Technology Fund” that was in place between mobile network provider and the company. It was further alleged that the defendant had laundered large amounts of cash through his bank accounts, that did not relate to any legitimate business or employment.
Our client had worked as an IT contractor for the company (a large drinks manufacturer), having been engaged through an agency and was responsible for ordering mobile telephones and related hardware from the company’s telecoms supplier. Those orders were charged to a “Technology Fund” — in essence, a line of credit held with the supplier.
Following an internal reconciliation exercise, the company alleged that in excess of 1,000 handsets, valued at around £546,000, could not be accounted for. He faced a seven-count indictment:
1. Count 1 — Fraud – contrary to sections 1 and 4 of the Fraud Act 2006, on the basis that he had abused his position and dishonestly placed unauthorised orders for handsets over a 2-year period.
2. Counts 2 to 5 — Converting criminal property, contrary to section 327(1)(c) of the Proceeds of Crime Act 2002, in respect of cash and other credits totalling some £421,000 across four bank accounts.
3. Count 6 — Fraud – contrary to sections 1 and 2 of the Fraud Act 2006, arising from his negotiation and signature of an extension to the Technology Fund contract, said to have been done without authority and by false representation.
4. Count 7 — Theft of five mobile handsets, for himself and family members, contrary to section 1(1) of the Theft Act 1968
The Defence case
Our client denied all dishonesty. His case ran on four broad fronts.
Orders were placed in his name because he was the point of contact, not because he was the only person ordering.
As the named contact on the supplier account, every order — whether placed by him, by another member of the IT team, or by procurement — was billed against and delivered in his name. He had himself extended ordering permissions to the whole IT team, and senior colleagues and the procurement function also had them. Devices were ordered on request from across the business, including sizeable rollouts to the sales and marketing teams, transfers to another office, and “buffer stock” for the third-party repair contractor.
The loss figure was unreliable.
The Crown’s reconciliation depended on matching supplier records against the company’s mobile device management system. The defence case was that this system was widely circumvented in practice: staff deleted the management app, used company handsets with personal SIMs, and devices were routinely replaced or cannibalised for parts or sent abroad. None of that was captured in the audit, so a gap between handsets ordered and handsets traceable did not equate to handsets stolen. Deliveries were collected from reception by whoever in IT was available, and storage was in shared rooms accessible to anyone with a building pass. He had not been given any written procedure or policy.
The contract extension was known about and approved.
He accepted renegotiating and signing the extension to the Technology Fund, but maintained that it was discussed with, and specifically approved by, senior colleagues, and that his understanding was that finance or procurement sign-off would follow in any event.
The cash had legitimate sources.
The money laundering counts were met with an account of several trading activities running alongside his contract work: a cash-based mobile car valeting business operated by a relative, a used car dealership that later failed, the sale of cryptocurrency and buying and selling phones and electronics through online marketplaces. He also gambled, online and at casinos on regular trips abroad, and said that occasional substantial winnings were brought home and banked in cash.
Defence Difficulties
The defendant being unavailable to give evidence on his own behalf at Trial left the defence in a difficult evidential position in respect of a number of issues including:
The cash deposits made into his bank accounts from lawful activity and legitimate sources were dependent on the defendant’s own evidence, which he was not present to give.
The defendant’s explanation made at the company’s internal meeting, was, on his case, confined to around five devices taken for personal use — the conduct charged in count 7 — and not to the wider fraud, which the prosecution would seek to suggest was the case, with limited direct evidence of rebuttal from the defence being available.
The deletion of documents from the defendant’s cloud storage, relied on by the Crown as evidence of guilty conscience and to ‘cover his tracks’, was said to be the removal of personal material rather than an attempt to frustrate the investigation but the defence were hindered in rebutting the prosecution assertions given the defendants absence.
These points, along with others, were plainly all matters on which the jury had only the defence statement (extracts of which were put before the jury by agreement at the discretion of the Court) and his internal investigation interview, but not sworn evidence, given under oath by the defendant.
Disclosure and its impact
The defence had sought further disclosure relating to mailboxes, in terms of the approval that was given to the defendant for the extension to the technology fund. Following repeated and tenacious attempts to obtain it by the defence, this material finally arrived very late in the day and was then utilised to significant effect in cross examination by instructed defence Counsel Robert Dacre.
Extensive and skilful cross examination of the witnesses including employees of the company, the internal investigator and officer in the case, also took place with considerable success and to the defendant’s advantage, casting considerable doubt on the Prosecution case.
The impact of this upon the Jury, was plainly evident, and despite the defendant’s absence, the Jury returned unanimous Not Guilty verdicts on each of the most serious counts on the indictment (counts 1 to 6) concerning the Fraud and Money Laundering counts.
The Jury convicted the defendant by a majority 10-2 on the remaining count 7, namely the theft of 5 mobile phones, which the defendant had partially conceded at the company’s internal meeting.
The unusual feature: an empty dock
By the time the case was listed for Trial in August 2026, our client had been living abroad for a considerable period, and extradition proceedings had not been completed. The defendant had attended only one hearing in the proceedings —in May 2022 — and by the Judges count, had failed to attend Court when required on ten occasions. A bench warrant not backed for bail had been issued in May 2024 and remained outstanding.
The reasons advanced by the defendant for his non-attendance were varied over time, including bereavements, cost of air fares and caring responsibilities for family members.
The Crown applied under rule 25.2(1)(b) of the Criminal Procedure Rules for the trial to proceed in his absence. The defence resisted, submitting in short that this was not one of the rare and exceptional cases in which the discretion should be exercised; that extradition proceedings were extant and offered at least the prospect of attendance; that the first three trial listings had failed for want of Court time rather than through any fault of the defendant; and, critically, that the defence to the money laundering counts depended almost entirely on his own evidence, with the position compounded by the deletion of colleagues’ mailboxes during the currency of the investigation.
The Judge granted the application. Several features of the ruling are worth noting for practitioners:
• Our client had declined to disclose his whereabouts in his country of residence and had indicated he would contest any extradition. The judge treated both as undermining the assertion that he wished to return but could not.
• The Crown was held to bear no burden to secure the defendant’s attendance; the obligation to surrender to bail rests on the defendant.
• The disadvantage of not giving evidence was recognised but treated as self-inflicted, mitigated by the availability of his account to the company’s internal investigators and by the court’s power to place extracts of the defence statement before the jury if it was in the interests of justice to do so.
• The risk of the jury drawing an improper inference was held to be capable of management by direction — and it duly was, the written directions telling the jury in terms that his absence added nothing to the evidence and provided no additional support to the prosecution case.
The legal framework
The rule
Rule 25.2(1)(b) of the Criminal Procedure Rules provides that the court must not proceed if the defendant is absent unless it is satisfied that:
• the defendant has waived the right to attend;
and
• the Trial will be fair despite the defendant’s absence.
These are two separate questions.
A finding of voluntary absence disposes of the first limb only.
It does not answer the second limb, and an application that treats a waiver of the right to attend as determinative of the fairness of any Trial process will be vulnerable.
The leading authority
In R v Jones (Anthony) [2002] UKHL 5, [2003] 1 AC 1, the House of Lords confirmed that the Crown Court has a discretion to commence and continue a trial in a defendant’s absence, and that the discretion is not inconsistent with Article 6 of the European Convention on Human Rights. The Court held that the discretion for commencing a trial in absence “should be exercised with the utmost care and caution”, a defendant absent through involuntary illness or incapacity having much stronger grounds to resist than one who has chosen to abscond.
The House endorsed the checklist formulated by the Court of Appeal in R v Hayward, Jones and Purvis [2001] QB 862, with one qualification: the seriousness of the offence should not be treated as a relevant consideration. The factors to be considered are:
1. The nature and circumstances of the defendant’s behaviour in absenting himself, and in particular whether it was voluntary and so plainly waived the right to be present;
2. Whether an adjournment might resolve the matter;
3. The likely length of any such adjournment;
4. Whether the defendant, though absent, wishes to be represented, or has waived representation;
5. The extent to which the defendant’s representatives can receive instructions and present a defence;
6. The extent of the disadvantage to the defendant in not being able to give his account of events;
7. The risk of the jury reaching an improper conclusion about the absence;
8. The general public interest that a trial should take place within a reasonable time;
9. The effect of delay on the memories of witnesses;
10. Where there are co-defendants who have not absconded, and the prospects of a fair trial for the defendants who are present.
What the case illustrates
Three points are worth drawing out.
First, a defendant who absconds does not thereby forfeit a defence altogether. The burden and standard of proof are unaffected by absence. The written directions in this case made that explicit, and the jury applied them.
Second, the second limb of rule 25.2(1)(b) is where the real argument lies. Voluntary absence may often be conceded or is simply unarguable. Fairness of the proceedings however, in terms of what evidence has been lost, what the defence can and cannot put, and what the jury will be told, will very often be of crucial importance in determining the application.
Third, non-attendance is almost always a costly choice for the defendant, even where it ends, as it did here, in acquittal. It forfeits the opportunity to give evidence on oath, leaves a bench warrant outstanding, and means the case can only be presented on documents and the accounts of others.
Robert Dacre of Cloth Fair Chambers was Instructed Trial Counsel
How we can help
Our team at Murray Hughman frequently act in complex fraud, white collar and financial crime cases. If you are facing serious allegations of financial crime, do not hesitate to contact us for a confidential consultation. Our experienced team are here to provide the robust defence you need to protect your rights and secure the best possible outcome.
