The defendants appealed against an order allowing their trial to proceed without a jury. There had been earlier trials lost where the jury had suffered interference.
Held: The trials could go ahead on this basis. The right to a fair trial would not be prejudiced by a trial without a jury, where there was a demonstrable danger of jury tampering and possible protective measures would not be adequate to promise protection. The right to jury trial was important but not a fundamental right. The Act was clear and provide the statutory requirements were met, a trial without a jury was proper.
The court gave guidance to judges on how to apply the 2003 Act where jury tampering had been established. In general, ‘save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial’. The court rejected an argument from the defence that the power to continue alone should not be exercised where closed evidence had been relied on: ‘The immediate attraction of the argument is plain. If correct however it would produce a remarkable outcome. It would mean that the court’s ability to discharge the jury because of jury tampering and order trial by judge alone could never be exercised if the evidence of the real and present danger were so sensitive that it could not be disclosed to the defendant. In short, the process could not apply where the actual potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health . . in such cases, faced with an order for disclosure, the Crown would be left with no alternative but to discontinue the prosecution. If so the objective of the jury tampering would have succeeded . . we agree that 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 injury tampering to derail the trial . . ‘
Otherwise: Regina v Twomey and Others
Judges:
Lord Judge, Lord Chief Justice, Lord Justice Goldring and Mr Justice Mccombe
Citations:
[2009] EWCA Crim 1035, [2009] 3 All ER 1002, [2009] 2 Cr App R 25, [2010] Crim LR 82, [2010] 1 WLR 630
Links:
Statutes:
Criminal Justice Act 2003 44 47(1)
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v KS CACD 17-Nov-2009
The jury had been discharged by the judge after finding jury tampering, and he decided to continue alone. The jury had not known of the earlier convictions of others involved in the alleged conspiracy, but the judge did and he had made reference to . .
Cited – S v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
Cited – Hutchings, Re Application for Judicial Review SC 6-Jun-2019
The appellant, a former army officer challenged proceedings against him as to the death of a civilian shot in Northern Ireland in 1974. His trial had been certified for trial by judge alone, and without a jury under section 1 of the 2007 Act.
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Human Rights
Updated: 23 March 2022; Ref: scu.347232