R v T; R v B; R v C; R v H [2009] EWCA Crim 1035; [2009] WLR (D) 199

CRIME — Practice — Trial without jury — Prosecution seeking trial without jury due to real danger of jury tampering — Whether contravening right to fair trial — Whether evidence in support of application to be disclosed to defendants — Human Rights Act 1998, Sch 1, Pt I, art 6 — Criminal Justice Act 2003, s 44

R v T

R v B

R v C

R v H

[2009] EWCA Crim 1035; [2009] WLR (D) 199

CA: Lord Judge CJ, Goldring LJ, McCombe J: 5 June 2009

A criminal trial without a jury did not contravene a defendant’s right to a fair trial where there was a real danger of jury tampering and proposed measures to prevent such interference did not sufficiently address the extent of the risk. On an application by the prosecution for a trial to be conducted without a jury in such circumstances the evidence should be disclosed to the fullest extent possible, but there would be cases where the evidence to demonstrate the risk of jury tampering would be so sensitive that it could only be addressed under public immunity interest principles and it would be contrary to the legislative purpose to make an order for disclosure which would, in effect, bring the prosecution to an end and enable those who had been involved in jury tampering to derail the trial.

The Court of Appeal, Criminal Division, so held in allowing an interlocutory appeal by the Crown against the decision of Calvert-Smith J at a preparatory hearing at the Central Criminal Court on 11 March 2009 refusing the Crown’s application under s 44 of the Criminal Justice Act 2003 for the trial of T, B, C and H, on charges which included possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery, robbery and conspiracy to rob, to be conducted without a jury because there was a real danger of jury tampering.

LORD JUDGE CJ, giving the judgment of the court, said that the 2003 Act imposed restrictions on the right to trial by jury by identifying two situations in which a trial on indictment might be conducted by a judge sitting alone. The present appeal was concerned with s 44, which applied where there was a danger of jury tampering. S 44 was unequivocal and unambiguous. The judge was required to order a trial without a jury if the conditions in s 44(4) and (5) were fulfilled: (4) that there was evidence of a real and present danger that jury tampering would take place and (5) that, notwithstanding any steps, including the provision of police protection, which might reasonably be taken, the likelihood that jury tampering 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. An application under s 44 should not be granted unless the judge was sure that both statutory conditions were fulfilled. The right to trial by jury was so deeply entrenched in our constitution that, unless express statutory language indicated otherwise, the highest possible forensic standard of proof was required to be established before the right was removed. That was the criminal standard. However, the evidence which might demonstrate the statutory danger was not confined to evidence which would be admissible at a defendant’s trial. The end result of the process of dispensing with a jury in such cases was not an unfair trial but a trial by judge alone, where the necessary procedural safeguards available in a trial by jury were and remained available to the defendant. It therefore did not follow from the hallowed principle of trial by jury that trial by judge alone, when ordered, would be unfair or improperly prejudicial to the defendant. The trial would take place before an independent tribunal and, for the purposes of art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, it was irrelevant whether the tribunal was judge and jury or judge alone. The second condition in s 44 required that, after making due allowance for any reasonable steps which might address and minimise the danger of jury tampering, the judge should be sure that there would be a sufficiently high likelihood of jury tampering to make a judge alone trial necessary. In R v Mackle [2008] NICA 183 at [28] and [31] the Court of Appeal in Northern Ireland drew attention to “the feasibility of measures, the cost of providing them, the logistical difficulties that they may give rise to, and the anticipated duration of any necessary precautions” as well as whether the level of protection appropriate to protect the integrity of the jury might “affect unfavourably the way in which the jury approached its task. If a misguided perception was created in the minds of the jury by the provision of high level protection this would plainly sound on the reasonableness of such a step”. Their Lordships agreed with that approach and, further, had examined the likely impact of possible measures on the ordinary lives of the jurors and considered whether even the most intensive protective measures for individual jurors would be sufficient to prevent the improper exercise of pressure on them through members of their families who would not fall within the ambit of the protective measures. S 45(3) required the judge to permit representations to be made by the defendants when an application for trial by judge alone was being made. However, there would be cases where the evidence to demonstrate the risk of jury tampering would be so sensitive that it could only be addressed under public immunity interest principles. The evidence should be disclosed to the fullest extent possible, but it would be contrary to the legislative purpose to make an order for disclosure which would, in effect, bring the prosecution to an end, and enable those who had been involved in jury tampering to derail the trial and avoid the consequences prescribed by statute, trial by judge alone. In the present case, the first pre-condition to the order sought by the prosecution was emphatically established: the danger of jury tampering and the subversion of the process of trial by jury was very significant. The proposed protective measures did not sufficiently address the extent of the risk. Accordingly, the trial would take place without a jury.

Appearances: Simon Russell Flint QC, Timothy Cray and Kate Wilkinson (instructed by Crown Prosecution Service, Headquarters) for the Crown; John Aspinall QC and Adrian Eissa (instructed by Saunders Law Partnership) for T; Graeme Wilson and Stephen Moses (instructed by Andrew Keenan & Co) for B; Kirsty Brimelow and Ben Newton (instructed by Reynolds Dawson) for C; Michael Austin-Smith QC (instructed by McMillen Hamilton McCarthy) for H.

Reported by: Jill Sutherland, barrister