T & Ors R v

Under section 44 of the Criminal Justice Act 2003, a Crown Court judge must order trial without a jury if sure that both statutory conditions are met. The criminal standard applies. The statutory risk is assessed over the whole trial and is not established merely because an example in section 44(6) is present.

In deciding whether protective measures make a juryless trial necessary, the court must assess their effectiveness, feasibility, cost, logistical and personal consequences, and their effect on jury objectivity. Sensitive evidence of jury tampering need not invariably be disclosed where disclosure would defeat the legislation’s purpose. An appellate court determines for itself whether the statutory conditions were met; this is not a discretionary decision reviewable only on Wednesbury grounds.

The Crown appealed, with leave, against Calvert-Smith J’s refusal to order that the respondents’ retrial be conducted without a jury under section 44 of the Criminal Justice Act 2003.

The respondents faced allegations arising from an armed warehouse robbery and related firearms offences. An earlier lengthy jury trial had ended without verdicts. At the subsequent trial, evidence of approaches to jurors led Judge Roberts QC to discharge the jury and terminate the proceedings. He did not order a juryless trial, instead leaving the renewed application to a Presiding Judge.

Calvert-Smith J found a real and present danger of jury tampering but concluded that protective measures could reduce the likelihood to an acceptable level. The central issue was whether those measures meant that the second condition in section 44 was not established.

Decision

1. The appeal was allowed. The court was sure that both conditions in section 44 of the Criminal Justice Act 2003 were fulfilled. The respondents’ trial was therefore ordered to take place without a jury.

2. Section 44 is mandatory once its conditions are proved. Given the constitutional importance of jury trial, the Crown must establish both conditions to the criminal standard. The first condition concerns a real and present danger over the entire trial process. The statutory examples in section 44(6) are neither exhaustive nor determinative, and do not create a presumption in favour of judge-alone trial.

3. For the second condition, the court respectfully adopted the approach in R v Mackle and others [2008] NI 183. It assessed the feasibility, expense, police resources, logistics and duration of protective measures, together with their likely effect on juror objectivity and ordinary lives. On the evidence, neither proposed protection package sufficiently addressed the risk, including pressure exerted through jurors’ families. The more intensive package would also be unreasonable because of its cost, manpower demands and burden on jurors.

4. The statutory opportunity to make representations does not require disclosure of all sensitive evidence. Disclosure should be made as fully as possible, but the court may consider evidence under public-interest-immunity procedures where disclosure would imperil people, reveal operational methods or allow serious jury tampering to defeat the prosecution. A judge-alone trial remains a trial before an independent tribunal and is not, for article 6 purposes, unfair merely because there is no jury.

5. The appellate issue was not whether Calvert-Smith J had acted unreasonably. The court had to decide whether his assessment of the statutory conditions was wrong. It also held that the judge deciding a section 44 application need not ordinarily be the trial judge: the form of trial is conclusively resolved and does not ordinarily invite reconsideration at trial. Calvert-Smith J, as Presiding Judge, was invited to identify a senior and experienced judge to conduct the trial.

• Court of Appeal (Criminal Division): allowed the Crown’s interlocutory appeal and ordered a judge-alone trial.

• Crown Court (Calvert-Smith J): refused the Crown’s section 44 application, despite finding a real and present danger of jury tampering, because proposed protection measures were thought sufficient.

• Crown Court (Judge Roberts QC): discharged the jury after evidence of jury tampering and terminated the trial. He declined to order a judge-alone retrial and invited reconsideration by a Presiding Judge.