Guthrie & Ors, R. v

Under section 46 of the Criminal Justice Act 2003, the power to continue an indictment after a jury has been discharged for tampering is additional to the court’s existing powers concerning juries. The judge may discharge the jury and decide separately whether to terminate the trial or continue without a jury.

For continuation under section 46(3), the judge must be satisfied to the criminal standard that tampering occurred and that judge-alone continuation is fair to each defendant. The statute does not confine the power to grave, organised or violent criminality, nor require proof that every defendant was responsible. Ordinarily, the judge who makes the necessary findings should continue; recusal is required only where the material seen or views expressed would prevent a fair and objective determination.

Four defendants were tried at Wood Green Crown Court on conspiracy-to-defraud counts concerning fraudulent housing and council-tax benefit applications, and on a count of transferring criminal proceeds. While the jury were deliberating, information suggested that a third party had contacted a juror in an effort to procure a not-guilty verdict.

The Recorder discharged the whole jury and, after considering material subject to public-interest-immunity principles and receiving representations, found that jury tampering had occurred. She ordered, under section 46(3) of the Criminal Justice Act 2003, that the trial continue without a jury and granted leave to appeal. The defendants challenged the disclosure process, the finding of tampering, the fairness of judge-alone continuation, and the Recorder’s ability to continue.

1. Appeals dismissed. The Recorder was entitled to find, to the criminal standard required by section 46(3) of the Criminal Justice Act 2003, that jury tampering had occurred and that continuing before her alone would be fair.
2. Section 46 supplements rather than displaces the common-law power to discharge a jury and the power under section 16 of the Juries Act 1974 to discharge individual jurors. It permits the judge first to discharge a jury affected by apparent tampering and later to decide whether the trial must be terminated or may continue without a jury. Nothing in the section requires both decisions to be made simultaneously.
3. The Recorder’s later decision under section 46(3) was not vitiated by the alleged defects in the earlier discharge decision. At the later hearing she correctly directed herself on the burden and standard of proof, the defendants had adequate notice of the issues requiring answer, and the non-disclosure of properly protected material did not make the process unfair.
4. Fairness under section 46(3) does not normally require the trial judge to recuse herself after making the statutory findings. Such a requirement would nullify the power. Recusal may nevertheless be necessary where material seen under public-interest-immunity procedures, or views already expressed, would impair objective adjudication or the appearance of fairness. The material and rulings here created neither actual nor apparent bias.
5. The statutory jurisdiction has no limitation based on the seriousness, scale, cost or duration of the alleged offending, nor on violent intimidation or organised criminality. It protects the integrity of the trial process, so tampering need not be attributable to every defendant. The Recorder could therefore continue the joint trial.

The Recorder was left to decide whether, after the appellate delay, she could still fairly deliver her judgment and verdicts.

• Court of Appeal (Criminal Division): appeals dismissed; the Recorder’s order under section 46(3) of the Criminal Justice Act 2003 that the trial continue without a jury was upheld.
• Wood Green Crown Court: after discharging the deliberating jury because of apparent tampering, Miss Recorder English ordered that the trial continue without a jury and granted leave to appeal.