A judge should not continue to try a case alone, after discharging the jury because of jury tampering, where an ‘informed objective bystander’ might legitimately conclude that there was a real possibility of bias by the judge. So held the Court of Appeal (Criminal Division) in a judgement given on 17 November, allowing an appeal by a defendant known only as KS under section 47 of the Criminal Justice Act 2003. The appeal was against an order made by a crown court judge, during the appellant’s trial for money-laundering offences, to discharge the jury under section 46 of that Act because of jury tampering, and continue as a judge-alone trial.

The defendant was alleged to have been involved in a very substantial VAT “carousel” fraud and the arrangements made for laundering the proceeds. His was the tenth trial in which different aspects of the fraud, and the roles of numerous different individuals, were examined. Many of them were convicted. Following conviction, sentences were imposed, and confiscation proceedings conducted. Judge A presided over all these trials and post trial hearings. In the first of this group of trials the Crown alleged that the appellant was one of those directly involved in the conspiracy to defraud with particular responsibility for laundering the proceeds. He was acquitted of conspiracy to cheat the Revenue and of one count of money laundering and the jury was unable to agree verdicts on two counts of money laundering. The Crown proceeded to a fresh trial of the appellant on substantive counts, adding two further similar counts to the indictment. After the jury had retired, the judge concluded that tampering had taken place and ordered the jury to be discharged. He found that it would be fair to the defendant for the trial to continue without a jury, and ordered accordingly.

Delivering the judgment of the court, the Lord Chief Justice, Lord Judge, said that it was an unusual and indeed an extreme case. By the time this tenth trial was coming to an end Judge A was inevitably aware of a vast body of information affecting their client of which the defence would have been ignorant and which therefore would not have been addressed in the present trial. “Everyone of those identified in the counts in the present indictment were said to have been jointly involved with the appellant. Each of them was convicted in trials over which Judge A had presided. Some of his observations about the appellant himself in the course of his sentencing remarks were specific to and critical of the appellant. None of these considerations, even taken together, prevented him acting as the trial judge when the jury was vested with the responsibility for the verdict. However taking them together, and examining them in their overall context, we have concluded that the objective bystander, considering the question which arose when the judge himself became responsible for the verdict, would be left with precisely the same concerns articulated by the judge in the course of the argument and which, in the result, he was persuaded with some hesitation to set aside…For these reasons this appeal will be allowed.”.

In an interesting postscript, the judgement concluded that “the layout of X Crown Court, and the opportunities for smoking available for those who wish to smoke, are unsatisfactory. They must be reconsidered, at any rate in relation to trials lasting more than a day or two, so as to avoid the inevitable risk of jury contamination where jurors and members of the public congregate together to have a smoke”. The full text of the judgement can be found at:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/2377.html

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