KS v R

Under section 44 of the Criminal Justice Act 2003, trial without a jury requires proof of two distinct and cumulative conditions: a real and present danger of jury tampering, and a residual likelihood of tampering so substantial, despite reasonable protective steps, that the interests of justice require judge-alone trial.

The nature of the threat must be assessed realistically. Protective measures must be proportionate. A real risk does not meet the second condition where limited and reasonable safeguards can reduce the risk to manageable proportions.

The defendant faced trial at Birmingham Crown Court for offences contrary to section 93 of the Criminal Justice Act 2003. An earlier jury had been discharged after tampering involving one juror. In the earlier appeal, R v KS [2009] EWCA Crim 2377, this court upheld the discharge but held that the trial should not continue before the same judge sitting alone because of a perception of possible bias.

On remission, Flaux J ordered that the retrial proceed without a jury. The defendant brought an interlocutory appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996. The central issue was whether the statutory condition in section 44(5) of the 2003 Act was met despite reasonable measures to protect a jury.

1. Appeal allowed. The order for trial without a jury was set aside.

2. Sections 44(4) and 44(5) of the Criminal Justice Act 2003 impose distinct and cumulative requirements. There must be a real and present danger of jury tampering. Despite reasonable preventative steps, the likelihood of tampering must also be so substantial that the interests of justice require trial without a jury.

3. The court accepted that the earlier suborning of one juror, together with the material considered at the public-interest-immunity hearing, established a genuine threat to the trial process. If a suitable opportunity arose, there was a realistic risk that it would be exploited again.

4. However, the prior incident had arisen from casual and avoidable contact between jurors and members of the public at the court. There was no evidence of careful planning, or of a planned attempt to threaten, intimidate, bribe, or dissuade jurors from returning a true verdict. The threat was materially less serious than threats in other judge-alone trial cases.

5. In deciding whether section 44(5) was satisfied, the court had to assess the nature of the threat and the reasonable safeguards available. The safeguards had to be proportionate. Limited jury protection, reinforced by clear and repeated directions about collective responsibility, proper conduct, and objective assessment of the evidence, could reduce the risk to manageable proportions. The statutory scheme confirms that jury protection must be addressed realistically and without unduly alarmist measures.

• Court of Appeal (Criminal Division): Allowed the defendant’s interlocutory appeal and set aside Flaux J’s order for trial without a jury.

• Crown Court at Birmingham: Flaux J ordered on 15 February 2010 that the forthcoming trial proceed without a jury under section 44 of the Criminal Justice Act 2003.

• Earlier appeal: In R v KS [2009] EWCA Crim 2377, the Court of Appeal upheld the discharge of the original jury but held that the trial should not continue before the same judge sitting alone.