Allen, R v

Under section 46 of the Criminal Justice Act 2003, once jury tampering is proved, a judge must terminate the trial if the interests of justice require it. Otherwise, the judge may continue without a jury only if satisfied that this is fair to the defendant.

The defendant’s involvement in the tampering is not a statutory condition and should not be determined by the trial judge. The ordinary course is to continue to verdict, unless case-specific circumstances make a judge-only trial unfair or termination necessary. Trial by jury is not itself an Article 6 right.

The applicant was convicted at Warwick Crown Court of possessing class A and class B drugs with intent to supply, and possessing pepper spray as a prohibited weapon. He received concurrent and consecutive sentences totalling 13 years’ imprisonment.

During jury deliberations, material showed that a juror had sought to assist the applicant, discussed deliberations with his mother, and disclosed voting information. The trial judge discharged the jury for jury tampering and ordered, under section 46(3) of the Criminal Justice Act 2003, that the trial continue without a jury. He then convicted the applicant.

The applicant sought permission to appeal against conviction. He contended that he had been denied the opportunity to appeal the section 46(3) order and that the trial should have been terminated because he was not involved in the tampering.

1. Application refused. The applicant had no real prospect of showing that his convictions were unsafe under section 1 of the Criminal Appeal Act 1968.

2. The judge had not refused the applicant an opportunity to appeal under section 47 of the Criminal Justice Act 2003. He gave counsel the opportunity to make further submissions. The applicant, having taken an informed view on advice, did not seek permission to appeal within the statutory period. Proceeding before expiry of that period did not render the subsequent process a nullity or make the convictions unsafe.

3. Section 46 required proof of jury tampering, which was undisputed. The judge then had to decide first whether the interests of justice made termination necessary. If not, he had to decide whether a judge-only continuation would be fair; only then did a discretion to continue arise.

4. Following R v McManaman [2016] EWCA Crim 3, the defendant’s participation in tampering was neither a statutory requirement nor an issue the trial judge should attempt to determine. The relevant questions were fairness and the interests of justice. The observation in R v Guthrie [2011] EWCA Crim 133 did not assist the applicant.

5. The judge correctly identified the case’s evidential features, including the completed trial evidence and the practical consequences of a retrial. Neither the seriousness of the charges, the applicant’s age and good character, nor the unusual evidence of a witness admitting responsibility made termination necessary or a judge-only trial unfair. Trial by jury is not an Article 6 right and could not be given pre-eminent weight under section 46(3).

• Court of Appeal (Criminal Division): Refused the applicant permission to appeal against conviction: [2019] EWCA Crim 1256.
• Crown Court at Warwick: After discharging the jury for tampering, the trial judge continued the trial without a jury and convicted the applicant on 23 November 2018.