Twomey & Ors, R. v

A statutory order for trial on indictment by judge alone concerns the mode of trial, not the determination of criminal liability. Where the conditions in section 44 of the Criminal Justice Act 2003 are met, the absence of disclosure of jury-tampering material does not make the order or the ensuing trial unfair merely because the material cannot be challenged by the accused.

The fair-trial requirements governing a liberty-restricting control order do not apply to that distinct pre-trial question. The trial itself must remain fair, and appellate review of undisclosed material protects against prejudice. A co-accused who becomes a prosecution witness is assessed for reliability as a witness; section 76 of the Police and Criminal Evidence Act 1984 has no direct application.

Following three unsuccessful jury trials arising from an armed robbery at Menzies Limited’s Heathrow warehouse, this court had ordered a fourth trial to proceed before a judge alone because of a real and present danger of jury tampering: R v T and others [2009] EWCA Crim 1035. Treacy J subsequently convicted all four appellants of robbery and firearms offences. Blake was also convicted of attempted grievous bodily harm with intent and possession of a firearm with intent to endanger life.

The appellants challenged the judge-alone order, public interest immunity procedure, severance, the reliability of an accomplice witness, and the sufficiency of the case against Cameron. Hibberd and Cameron also appealed their sentences. The central issue was whether closed jury-tampering material and the judge-alone procedure made the convictions unsafe or the trial a nullity.

1. The appeals against conviction and sentence were dismissed. The trial before Treacy J was fair, properly constituted and produced safe convictions.
2. An order under section 44 of the Criminal Justice Act 2003 determines only whether the tribunal will be judge and jury or judge alone. It does not determine guilt, impose punishment, restrict liberty, or interfere with property. The procedural fairness rule in Secretary of State for the Home Department v AF and others (No 3) [2009] 3 WLR 74, concerning control orders founded on closed material, therefore did not require disclosure of an irreducible minimum of jury-tampering material before a judge-alone order could be made.
3. The statutory conditions were met. There was evidence to the criminal standard of a real and present danger of jury tampering. Reasonable protective measures could not reduce the substantial likelihood of tampering to an acceptable level without unfair consequences for jurors. The statutory removal of a jury in those circumstances did not diminish the requirement that the ensuing trial be fair. The court followed the ordinary criminal disclosure and public interest immunity principles stated in R v H and C [2004] 2CAR 10.
4. Treacy J had not seen the closed material on which the earlier jury-tampering decisions were founded. He reviewed only material relevant to disclosure at trial. The Court of Appeal’s own review confirmed that none of it could assist the defence or undermine the prosecution, and none created actual or potential prejudice. There was consequently no appearance or reality of bias.
5. The judge was not required to identify which defendant, if any, was responsible for jury tampering before considering severance. The legislation addressed the integrity of the trial process. Ordinary severance principles remained applicable, but separate trials, some by judge alone and others by jury, were wholly unrealistic on these facts.
6. Section 76 of the Police and Criminal Evidence Act 1984 did not directly govern the evidence of Brockwell, a co-accused who had pleaded guilty and gave evidence for the Crown. The decisive factual question was whether his evidence was reliable and truthful despite the attacks upon his credibility. Treacy J had approached that question with appropriate caution and was entitled to accept his account.
7. The evidence against Cameron, including direct evidence and supporting circumstantial evidence, justified the rejection of the no-case submission and the conviction. The sentencing judge made no error in assessing culpability or mitigation. The earlier 15-year guidance in R v Turner [1975] 61 CAR 67 was no longer a ceiling for a professionally planned armed robbery. Nor was there an unfair disparity between a life sentence with a minimum term and determinate sentences subject to different release regimes.

• Court of Appeal (Criminal Division): Dismissed the appellants’ appeals against conviction and dismissed Hibberd’s and Cameron’s appeals against sentence.
• Central Criminal Court: Treacy J, sitting without a jury, convicted the appellants on 31 March 2010 and imposed the challenged sentences.
• Court of Appeal (Criminal Division): In the same proceedings, ordered the fourth trial to be conducted by judge alone because of jury tampering: R v T and others [2009] EWCA Crim 1035.