Shahid Mohammad v Palvaan Islaam

Where jury tampering has occurred, a judge may continue an indictment without a jury only if satisfied to the criminal standard that the statutory conditions are met: tampering has taken place, continuation is fair to every defendant, and termination is not necessary in the interests of justice.

Ordinarily, an otherwise fair trial should continue. Unusual circumstances require a case-specific source of unfairness. The lateness of the tampering, the need to assess credibility, and the absence of a defendant’s involvement in the tampering do not, without more, prevent continuation. The decisions whether to discharge the jury and whether to continue without one are separate.

During a lengthy Birmingham Crown Court trial for fraud and money laundering, the jury disclosed two approaches made to a juror by third parties. The judge found that jury tampering had occurred and discharged the whole jury. That finding and the discharge were not challenged.

On 30 November 2023, the judge ordered under section 46(3) of the Criminal Justice Act 2003 that the trial should continue before him without a jury. Four defendants appealed. They alleged procedural and substantive unfairness, relying particularly on the late stage of the trial, possible alternative defence strategies, credibility issues, and the fact that some defendants were not implicated in the tampering.

The central issue was whether the order should be confirmed or revoked under section 47.

1. Appeals dismissed. The court confirmed the order that the trial continue before the judge without a jury.

2. Under section 46 of the Criminal Justice Act 2003, the judge had to be satisfied to the criminal standard that jury tampering had occurred and that continuation without a jury would be fair. If termination was necessary in the interests of justice, the judge had to terminate the trial. Otherwise, he had a discretion to order continuation. Those requirements were met.

3. The court accepted the legislative approach stated in R v Twomey, [2009] EWCA Crim 1035: once the statutory conditions are satisfied, an otherwise fair trial should normally continue after jury tampering. The exceptional category of unusual circumstances is not prescriptive. A case turning on credibility does not itself make judge-alone continuation unfair, and a reasoned judgment gives defendants an additional safeguard.

4. The judge was entitled to assess his own ability to decide the case fairly on the admissible evidence. There was no actual or apparent bias. The disputed juror accounts bore only on the unchallenged finding that tampering occurred. It was immaterial whether any appellant was responsible for the tampering. The suggested alternative defence strategies were speculative, because the judge would decide the same issues on the same evidence as the jury.

5. There was no procedural unfairness in considering continuation only after discharging the jury. The two decisions are distinct and engage different considerations; keeping them separate assists the judge to focus first on whether discharge is required. The lateness of the event did not preclude continuation and was a legitimate reason against an impractical retrial.

6. The judge’s conclusion that termination was not necessary in the interests of justice was compelling. It reflected the public interest that tampering should not stop an otherwise fair trial, the age of the alleged offending, witness-memory concerns, the advanced stage of the trial, and the likely delay before any retrial.

The court also lifted the reporting restriction imposed under section 4(2) of the Contempt of Court Act 1981.

• Court of Appeal (Criminal Division): Dismissed the appeals and confirmed the judge-alone continuation order: [2024] EWCA Crim 34.
• Birmingham Crown Court: On 30 November 2023, following discharge of the jury because of tampering, His Honour Judge Andrew Smith KC ordered under section 46(3) of the Criminal Justice Act 2003 that the trial continue without a jury.