One of the more surprising pledges in the Coalition programme for government was to extend anonymity in rape cases to defendants. Such a move would turn the clock back to 1976, when the Sexual Offences Act introduced anonymity for those accused of rape. That provision was repealed in 1988. Shortly after the Coalition pledge, which provoked a storm of adverse publicity, deputy prime minister Nick Clegg signalled a willingness to drop the government’s plans when he told Parliament: “I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

Now it would seem that the government has abandoned these plans. When asked in the Commons last week if he will conduct a public consultation on whether to grant anonymity to defendants in rape cases, justice minister Crispin Blunt said: “The Government are minded to strengthen anonymity before charge. We want to hear the views of those who may have any new evidence to assist our deliberations, and we will bring our conclusions to Parliament in the autumn.” However, he went on to say: “Since the principal points of judgment around the issue are clear and very narrow…the Government do not propose to manage a full, formal public consultation.” Crucially he added: “We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loath to find even more statutes to put on the statute book.”

Instead the government will negotiate with the Press Complaints Commission to persuade newspapers and websites to grant anonymity to suspects. “It was agreed on both sides of the House when the Sexual Offences Act 2003 went through Parliament that all people charged with offences ought to have their identity protected until the point of charge. That is the guidance that the Press Complaints Commission put into effect in 2004.” He added that there is an issue around the strength of that guidance which required attention. According to the ‘Guardian’, Government sources said the minister had not performed a U-turn because ministers had not committed themselves to changing the law. Ministers are still committed to granting anonymity to suspects between arrest and charge and believe that a change in the PCC code is the best way of achieving this.

A defendant’s right to a fair trial was not prejudiced by holding a criminal trial without a jury, where the danger of jury tampering was very significant and was not sufficiently addressed by proposed protective measures.

So held the Court of Appeal, Criminal Division, in a recent reserved judgment, allowing an interlocutory appeal by the Crown against the refusal by Mr Justice Calvert-Smith at the Central Criminal Court on March 11, 2009, of its application under s.44 of the Criminal Justice Act 2003 for an order that the trial of John Twomey, Peter Blake, Glen Cameron and Barry Hibberd, be conducted without a jury because of the danger of jury tampering. They have been charged with possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery, robbery and conspiracy to rob, at the Menzies World Cargo warehouse, Heathrow, in 2004,

The Lord Chief Justice, giving the judgment of the court, said that “in this country trial by jury is a hallowed principle of the administration of criminal justice. It is properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation”. But he added that the constitutional responsibilities of the jury are flouted if the integrity of an individual juror, and thus of the jury as a whole, is compromised. Any attempt at interference with the jury constitutes an abuse or misuse of the process. The Criminal Justice Act 2003 has imposed fresh restrictions on the right to trial by jury, identifying two particular situations in which such a trial on indictment may be conducted not by a judge and jury, but by a judge sitting alone. These are:-

s.44 (4) The first condition is that there is evidence of a real and present danger that jury tampering would take place.
(5) The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

The Lord Chief Justice said that the legislation is unequivocal and unambiguous and the judge is required to make the order if the conditions in s.44(4) and (5) are fulfilled. After reviewing and considering the history of the case to date, he concluded that “the first pre-condition to the order sought by the prosecution is emphatically established. By that we mean that the danger of jury tampering and the subversion of the process of trial by jury is very significant”. The estimated cost of protective measures was estimated to be £1.5 million, with the loss of 32 police officers from their other duties for six months or longer. “But in our judgment these protective measures do not sufficiently address the extent of the risk…Even if it did deal with the dangers posed to the integrity of trial by jury, it would be unreasonable to impose that package with its drain on financial resources and police manpower on the police, and, no less important, it would be totally unfair to impose the additional burdens consequent on the deployment of this package on individual jurors”.

The full text of the judgement, Neutral Citation Number: [2009] EWCA Crim 1035, Case No: 2009/01566, b e f o r e the Lord Chief Justice of England and Wales, Lord Justice Goldring and Mr Justice McCombe, can be found at:-

http://www.bailii.org/ew/cases/EWCA/Crim/2009/1035.html