- by 2nd year LLB student, Jennie Vinnac
- Assessed by Dr Penny Darbyshire, Kingston University
- Mark achieved: First Class (74%)
- Written in March 2011
- Word count: 1,494
The fairness of criminal trials has rested upon the use of a jury for over 400 years. The ability to be judged by a panel of your peers is considered a British institution. Thus, how is it that this right can now be taken away from defendants? In very specific cases, with the introduction of the Criminal Justice Act (CJA) 2003, a judge or court can order trial by judge alone. Since the introduction of sections of the Act which govern this area of law, few applications for judge-only trials have been made, and, as yet, only one has been successful; the case of R v T. Before looking at the case and its precedent, we must first consider the CJA 2003.
In the White Paper, Justice for All, suggestions were made that in trials on indictment, where there is a serious risk of jury tampering, the option for trial by judge alone should be considered. The White Paper also outlined considerations whereby a judge should be able to opt to continue a trial without the jury, or declare that the trial be re-tried by another judge where there have been attempts to intimidate or influence the jury part-way through a trial. This was, through much oppositions and subsequent amendments by the House of Lords during the passing of the Bill at Committee stage, implemented in the CJA 2003. Section 44 allows for judge-only trials where two conditions are met; that there is ‘evidence of a real and present danger that jury tampering would take place’; and that even with the implementation of preventative measures ‘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 second consideration is found in s 46, which states that a judge may discharge a jury where there is evidence that tampering has taken place. The judge has to either; continue the trial without the jury where it would be fair to the defendant(s) or, if it is found in the interests of justice to order a new trial, both the conditions in s 44 are required.
There are cases to look to for guidance on how to interpret the sections of the CJA 2003 referring to jury tampering. Much relevant case law has come from Northern Ireland and decisions of the Diplock Courts. In R v Mackle the courts made it clear that the occurrence of jury tampering is only evidence of the existence of a real and present danger and does not, by itself, constitute this danger. Thus, in deciding whether s 44(4) can be found, the judge must assess the evidence of previous jury tampering. An essential criticism of the law in relation to jury tampering is that, in a case where there are multiple defendants, where the right to jury trial is taken away, this affects them all, regardless of their involvement in the jury tampering.
It is necessary, in discussing the use of judge-only trials, to consider the case of R v T. This has been the defining case where a judge has sat alone in a trial on indictment where there has been a previous attempt of jury tampering. This case was decided in 2010. However, to properly understand the issues that were raised, we must look back at the history of the case.
The case first came to the Old Bailey in 2005. It concerned the robbery of £1.75 million from a warehouse at Heathrow airport in 2004. Before the case was heard at trial by a judge sitting alone, prosecutors made three previous attempts to bring the men to justice. The first trial collapsed when the defendant, John Twomey, suffered a heart attack, the second due to the jury being reduced to 9 and unable to come to an unanimous decision, and the third being the trial where the supposed jury nobbling took place.
John Twomey, alleged Heathrow robbery mastermind.
Justice Calvert-Smith was first to consider the use of a judge sitting alone on the fourth trial. However, while he held, there was a ‘real and present danger’ of jury tampering, he submitted that with a package of preventative measures the risk would be reduced. Upon appeal, it was decided that even with protective measures the risk was ‘so substantial’ that the court ordered the case to be heard by a judge alone. While considering an expensive package Lord Judge stated that ‘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 main concern about this decision, which has been relentlessly repeated by the defence, is that they were never given the evidence of jury tampering so as to be able to make representations on behalf of the defendants. This was an issue raised during the passing of the Bill by MP Vera Baird, and was thus enacted in s 45(3), where it states that ‘the parties…must be given an opportunity to make representations’. Yet, the decision to withhold this information centres on the principle of PII (public interest immunity) that the ‘disclosure of material may… give rise to unacceptable risks to the safety of others or to the integrity of the investigative process’. Thus, the trial started without a jury and, even with one of the defendants, Peter Blake, absconding for a week, came to an end in March, with Justice Treacy finding the four defendants guilty. After the decision, the defendants appealed against their convictions claiming their trial was unlawful and that the evidence of jury tampering was required to have been disclosed. However, the Court of Appeal rejected the men’s claims later on that year.
Key issues have been clarified with this significant case. First of all, when the Court of Appeal first ruled that a judge alone should try the case it was stated that the burden of proof required before it is ascertained that a trial can go ahead without a jury is the criminal one of ‘beyond reasonable doubt’. They were also keen to add further consideration when deciding whether there are sufficient preventative measures to avoid jury tampering. Lord Judge, referring to R v Mackle in his judgement, confirmed that it is necessary to take into account the ‘feasibility’ and cost of the proposed steps. Additional matters include whether these measures would prevent pressure being placed on jurors’ family members and the effect on their lives generally. As with the case’s non-disclosure of information under PII principles, Lord Judge made it clear that ‘evidence should be disclosed to the fullest extent possible’, however, referring to comments made by Lord Bingham in R v Comerford, that this was ‘an ideal which cannot always be achieved’ and to have made an order for disclosure would have led to the withdrawal of the prosecution.
Subsequent cases where a trial has been under an order to be heard without a jury have come before the Court of Appeal and it has attempted to further limit the use of such trials. In R v J the court rejected the High Court’s decision to conduct the trial by judge alone, on the basis that, under s 44, there was evidence that jury tampering was a real and present danger, as it was only due to last two weeks and that to provide sufficient protective measures would not hinder the jury’s ability to come to a true verdict or impose in their lives for a prolonged period of time. The trial was to go ahead with a jury, thus showing that jury trial is always the preferred option, and that the use of judge only trials is a last resort and restricted for only the most serious of cases. In R v S the Court of Appeal considered the position of a judge who had presided on the cases of defendants
charged with various offences of fraud. All had been convicted, except S, and when the judge dismissed the jury under s 46 ruling that he would continue the case alone, the defendant appealed, successfully, to the Court of Appeal. It was stated in their judgement that, as with juries, the appearance of fairness must also be reflected by a judge sitting alone, and that where there is actual or apparent bias, the judge must instruct the trial to be re-tried by a different judge.
So is this really an attack on justice? Many think so, and at first it seemed that the courts had opened up the use of judge only trials far wider than Parliament had intended. However, their latest decisions have shown their unwillingness to restrict right to trial by jury, making it a procedure reserved as a last resort.
A bit about the author …
Jennie Vinnac is studying law at Kingston University and will start the third year in September
2011. Jennie’s interests include proof-reading for an online arts magazine as well as taking on minor sub-editing roles. She is also undertaking to re-learn the piano.
Favourite Quote
“Aime la vérité, mais pardonne à l’erreur” – Voltaire
“love truth but forgive mistakes”
Bibliography
Criminal Justice Act 2003
R v Comerford [1998] 1 WLR 191
R v J [2010] EWCA Crim 1755
R v Mackle [2007] NICA 37
R v S [2009] EWCA Crim 2377
R v T [2010] 1 WLR 630, [2011] EWCA Crim 8
(–), ‘Heathrow armed robbers guilty after first criminal trial without jury’ The Telegraph (31 March 2010) webpage accessed 3 March 2011
(–), ‘Heathrow robbers lose trial-without-jury appeals’ BBC News (20 January 2011) webpage accessed 22 February 2011
(–), ‘Non Jury Trials’ The Crown Prosecution Service (September 2010) webpage accessed 9 March 2011
Michael Bisgrove, ‘Judges as tribunals of fact: to what extent do the provisions for a defendant to be tried on indictment by a judge sitting without a jury conflict with the defendant’s right to a fair trial where issues of PII are present?’ (2010) 9 Crim LR 702
Criminal Justice Bill 2002-2003
Frances Gibb, ‘Commentary: a long history of jury nobbling’ The Times (19 June 2009) webpage accessed 16 March 2011
Frances Gibb, ‘First Criminal Trial without a jury for 400 years’ The Times (19 June 2009) webpage accessed 16 March 2011
Frances Gibb, ‘Trial without jury must be a last resort, says Lord Chief Justice’ The Times (29 July 2010) webpage accessed 16 March 2011
Home Office, Justice For All (CM 5563, 2002)
Sandra Laville, ‘Heathrow robbery trial breaks with 400-year tradition of trial by jury’ Guardian (10 January 2010) webpage accessed 15 February 2011
Seth Levine, ‘Dangerous Precedent?’ (2010) 19 LS Gaz 15
Seth Levine, ‘Practical consequences of Twomey case for non-jury trials’ Law Society Gazette (15 April 2010) webpage accessed 3 March 2011
Nick W. Taylor, ‘Case Comment: R. v T; R. v B; R. v C; R. v H: trial by judge alone – trial on indictment conducted without jury – jury tampering’ (2010) 1 Crim LR 82
David Wolchover and Anthony Heaton-Armstrong ‘Star Chamber or a secret gang of 12?’ (2009) C.L. & J. 173(27), 420
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