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

It is always an event when the Lord Chief Justice reveals his views on the judicial system and so it was when the new holder of the office, Lord Judge of Draycote, addressed the University of Hertfordshire on 4 November. The title of his speech was “The Criminal Justice system in England and Wales – time for change?” and the full text can be found at http://www.judiciary.gov.uk/docs/speeches/lcj-speech-uni-hertfordshire-041108.pdf

Among many aspects considered was the relationship between the internet and the jury system. Lord Judge’s concerns are twofold. Firstly the availability of the internet to jurors. At the outset of a trial, judges direct the jury not to look at the internet in connection with the trial. They must reach their verdict only on the basis of what they hear in the courtroom. But, inevitably, from time to time an individual juror will disregard the direction and make his own private enquiries. Lord Judge referred specifically to a recent case when a juror went online using a Blackberry during a rape case, causing the conviction to be quashed. And he is not just concerned with today, “but the technology which will be available to our successors in, say, 2020 or 2025. I cannot begin to imagine the extent of the changes which lie ahead.”

His second concern is the extent to which internet culture is inimical to the traditional jury system. “Our system of jury trials depends on twelve good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system. Witness speak and answer questions. Counsel speak and address the jury. Judges speak and give directions.” He described how the young get much information from the internet, how they consult and refer to it. “They are not listening. They are reading.” The potential problem he identifies is whether, learning as they do in this way, they will be accustomed to listening for prolonged periods. “What will happen to our oral tradition? Should it, will it, be forced to change?”

Writing in “The Guardian” Marcel Berlins wonders if the jury system can survive the internet. Accepting the validity of Lord Judge’s observations, he points out that although members of the internet generation are currently in the minority of today’s juries, progress is relentless, and it will not be long before they start to dominate them. He poses the question “what can be done to convey the evidence during a trial in a more palatable way, without destroying the essence of the jury system?”

Neither he nor the Lord Chief Justice (“I do not have solutions”) come up with answers.