McManaman, R v

Under section 46 of the Criminal Justice Act 2003, jury tampering must be proved to the criminal standard. Proof that the defendant instigated, knew of, or acquiesced in the tampering is not required. Once tampering is established, the judge should ordinarily continue the trial without a jury if this is fair to the defendant and termination is not required in the interests of justice. The approach applicable to an advance order for trial without a jury under section 44 does not govern this distinct statutory power. The trial judge may act on the evidence then available and need not await the end of a police inquiry.

The appellant was tried at Liverpool Crown Court on an allegation of rape. The first jury was discharged after further medical and forensic evidence required consideration by the defence. During the retrial, a person associated with the appellant sent a Facebook friend request to a juror shortly after attending court.

The trial judge found that the contact was deliberate jury tampering. He discharged the jury and, under section 46 of the Criminal Justice Act 2003, ordered that the trial continue before him without a jury. The appellant appealed with leave under section 47(2), contending that tampering had not been proved, that his involvement had to be established, and that a credibility-based case should remain with a jury.

1. Appeal dismissed. The judge was entitled to find jury tampering to the criminal standard required by section 46(3)(a) of the Criminal Justice Act 2003. The timing and circumstances of the Facebook request justified his conclusion that the explanation given was fanciful and that the juror had deliberately been sought out. The later interview transcript added nothing material. The judge did not have to await the conclusion of the police inquiry.

2. Section 46 requires proof of tampering, not proof that the defendant caused it or was involved in it. The statutory purpose is to protect the integrity of the jury. As R v Comerford [1998] 1 WLR 191 explains, that integrity is compromised where a juror is induced to qualify the duty to return a true verdict according to the evidence. Tampering will commonly be carried out by another person, whether connected with the defendant or otherwise interested in the result. Requiring the trial judge to determine the defendant's involvement could itself compromise the fairness of the ensuing trial.

3. The court agreed with the approach in R v Twomey [2009] EWCA Crim 1035: save in unusual circumstances, the judge should discharge the jury and continue the trial without it. This both discourages tampering and prevents those responsible from gaining an advantage. The description of an advance judge-only trial under section 44 as a decision of last resort, drawn from R v J S & M [2011] 1 Cr App R 5, did not apply to section 46.

4. It was fair to continue this trial without a jury. Assessing credibility is an ordinary judicial function. Section 48(5) provides the further safeguard of a reasoned judgment capable of appellate scrutiny. The interests of justice did not require termination, particularly given the burden on the complainant of giving evidence again.

5. The police investigation had been unacceptably inadequate. When a trial judge requires an investigation into alleged jury tampering, the police have a legal duty to conduct it urgently, under close senior supervision, and to give the judge regular reports so that a prompt decision can be made.

• Court of Appeal (Criminal Division) — The appeal under section 47(2) of the Criminal Justice Act 2003 was dismissed. The order to continue the trial without a jury was upheld.
• Crown Court at Liverpool — Following a Facebook friend request to a juror, the trial judge discharged the jury and ordered continuation of the retrial without a jury under section 46 of the Criminal Justice Act 2003.