KS, R. v (Rev 2)

Where jury tampering is established, discharge of the jury is a last resort; but, once jurors have begun deliberating, no informed alternative will normally protect the integrity of the verdict. Public-interest-immunity material may properly be relied on, with disclosure to the fullest extent possible, since requiring disclosure that would end the prosecution would defeat the statutory purpose.

A trial may nevertheless continue before a judge alone only if that course is fair. The statutory scheme does not displace the separate rule against apparent bias. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge who has acquired extensive, prejudicial knowledge in related trials may remain suitable to preside before a jury, but be unable fairly to become the sole tribunal of fact.

The appellant faced a retrial on four money-laundering counts arising from a substantial MTIC VAT fraud. He was the sole defendant, but the judge had presided over nine earlier trials concerning the same criminal enterprise and had sentenced persons alleged to have acted with him.

After the jury had retired, the judge considered public-interest-immunity material and found that jury tampering had occurred. He discharged the jury and directed that the trial continue before him alone under the Criminal Justice Act 2003. The appellant appealed both decisions. The central question was whether, despite the proved tampering, this judge could fairly become the tribunal determining guilt given his extensive knowledge from the earlier proceedings.

1. Appeal allowed. The Court upheld the finding that jury tampering had occurred and upheld the jury’s discharge. The finding was supported by convincing material, including undisclosed PII material. Once the jury had begun deliberating, the possible influence of a suborned juror on the whole jury could not realistically be assessed. No alternative short of discharging the jury was available.

2. The judge had properly considered alternatives. The powers under sections 44–46 of the Criminal Justice Act 2003 supplement rather than reduce the existing powers concerning jury discharge. Discharge remains a measure of last resort. Section 46(2) did not require disclosure of sensitive material whose disclosure would frustrate the legislation by allowing sophisticated jury tampering to end the prosecution. Disclosure should nevertheless be made to the fullest extent possible.

3. The Court rejected the argument that the judge’s robust case management, or the late point at which the jury was discharged, by itself prevented him from continuing. Nor was a judge ordinarily disqualified merely because he had considered PII material.

4. However, the statutory requirement that judge-alone continuation not be unfair did not displace the independent rule against actual or apparent bias. Applying the fair-minded and informed observer test, the Court held this to be an exceptional case. The judge had acquired extensive information in nine related trials, including material adverse to the appellant that was not evidence in the retrial and which the defence could not address. He had also made sentencing observations critical of the appellant and presided over the convictions of all persons named in the current counts. Taken cumulatively, those matters created a real possibility of apparent bias once he, rather than a jury, would decide the verdict.

5. The jury remained discharged, but the decision that the judge should continue alone was set aside. The Court invited written submissions within 14 days on consequential orders.

• Court of Appeal (Criminal Division): allowed the appeal from the Crown Court’s orders discharging the jury and continuing the trial before the judge alone. It upheld the discharge but set aside the judge-alone continuation decision.

• Crown Court at Y: on 5 and 6 August 2009, Judge X found jury tampering, discharged the jury and directed that the trial continue before him sitting alone.