J, S, M v R.

Under section 44 of the Criminal Justice Act 2003, trial without a jury is a last resort. The court must be sure that both statutory conditions are fulfilled: a real and present danger of jury tampering, and the necessity of judge-alone trial despite all reasonable protective measures.

Where a short trial can be conducted with a protected jury, the fact that jurors will recognise the need for security does not ordinarily make their objective consideration of the case impossible. Only exceptionally intrusive protection, with a seriously unreasonable effect on jurors’ lives or police resources, will justify dispensing with a jury in a serious criminal trial.

The appellants were charged with conspiracy to pervert the course of public justice. Wilkie J, sitting in the Crown Court at Sheffield, ordered under section 44(3) of the Criminal Justice Act 2003 that their forthcoming trial be conducted by a judge alone.

He found both statutory conditions satisfied: a real and present danger of jury tampering and the necessity of a judge-alone trial in the interests of justice. The defendants brought an interlocutory appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996. The central issue was whether reasonable jury-protection measures could permit a fair jury trial.

1. Appeal allowed. The court agreed that, applying the criminal standard of proof, there was a continuing real and present danger of jury tampering. The first condition in section 44 was therefore met.

2. The second condition was not met. The proposed trial was expected to last about two weeks. Jury anonymity, secure transport and a courtroom arrangement preventing public visibility would not impose an unacceptable burden for that period. Nor would those measures, with proper management and directions, prevent jurors from deciding the case objectively and returning a true verdict.

3. A judge-alone order under section 44 is a decision of last resort. It requires certainty that the statutory conditions are satisfied, not doubts, suspicions or reservations. The normal expectation is that a protected jury will perform its public duty. An order may be justified only in extreme cases, such as protection involving a constant or pervasive police presence with an unreasonable intrusion on jurors’ ordinary lives and a consequential demand on police resources.

4. If jury tampering during a trial makes it necessary to discharge the whole jury, the judge may continue the trial alone and give judgment and verdict. A defendant who attempts to subvert trial by jury cannot justifiably complain of that consequence.

• Court of Appeal (Criminal Division): Allowed the interlocutory appeal and set aside the order for trial by judge alone.
• Crown Court at Sheffield: On 19 February 2010, Wilkie J ordered under section 44(3) of the Criminal Justice Act 2003 that the forthcoming trial be conducted by a judge alone.