William Sartin v R (No 2)

Under section 46 of the Criminal Justice Act 2003, the normal course after jury tampering is for the trial to continue without a jury, save in unusual circumstances. The defendant’s responsibility for the tampering is irrelevant. A disqualifying actual or apparent bias may constitute such a circumstance. Apparent bias is assessed by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias, viewed at the time of the decision and in its full context. Prior trial involvement, adverse findings on discrete issues and provisional case-management comments do not ordinarily disqualify a professional judge.

William Sartin was charged with conspiracy to export a Class A controlled drug. After a juror reported intimidation outside the Crown Court, the trial judge discharged the jury under section 46 of the Criminal Justice Act 2003 and ruled that the trial should continue before him without a jury.

Sartin challenged that decision under section 47, alleging actual or apparent bias arising from the judge’s conduct of an earlier related trial, bail and sentencing decisions, fitness to plead findings, and comments concerning his non-attendance at the start of the trial. The judge refused leave to appeal. The central issue was whether these matters created unusual circumstances making continuation without a jury unfair.

The court granted the extension of time and leave to appeal. There was no challenge to the finding that jury tampering had occurred. The appeal was dismissed.

1. Statutory approach. Section 46 of the Criminal Justice Act 2003 permits a trial to continue without a jury after jury tampering. The normal approach, save in unusual circumstances, is continuation of the trial. The time of the tampering and whether the defendant was responsible are irrelevant. The court applied the guidance in R v Mohammad (Shahid) [2024] EWCA Crim 34, which endorsed R v Twomey [2009] EWCA Crim 1035.
2. Bias. Actual bias requires actual prejudice. Apparent bias arises where the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The assessment is fact-specific and must be made at the point of the section 46 decision. A disqualifying perception of bias can amount to an unusual circumstance. The observer must take account of the professional judge’s training and experience, and the context and purpose of the judge’s remarks. The court applied Porter v Magill [2001] UKHL 67 and considered O’Neill v HM Advocate (No 2) [2013] UKSC 36.
3. Earlier trial and prior material. A judge’s prior involvement in a related trial, or awareness of evidence not before the jury, does not automatically disqualify the judge. The fair-minded observer must assess the circumstances overall. Unlike R v SK [2009] EWCA Crim 2377, this involved only one earlier trial, the evidence was largely the same, the earlier trial was nearly two years old, and no defendant had implicated Sartin.
4. Earlier findings and comments. An adverse finding on a discrete issue does not prevent a judge from deciding other issues with an open mind. Judges must also put irrelevant material out of mind. The findings at the fitness to plead hearing were restrained and related to an issue the judge had to determine. The comments on Sartin’s non-attendance were forthright but provisional, relevant to case management, and made while information remained incomplete. They were not gratuitous or outside the proper performance of judicial duties. The court applied Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 and R v Walls [2011] EWCA Crim 443.
5. Conclusion. The bail refusal, sentencing remarks, earlier trial, fitness to plead findings and first-day comments did not establish actual or apparent bias. This was not one of the rare cases in which a trial could not fairly continue before the judge alone.

1. Court of Appeal (Criminal Division) — In [2024] EWCA Crim 764, the court granted an extension of time and leave to appeal, but dismissed the appeal against the decision to continue the trial without a jury.
2. Crown Court at Kingston-upon-Thames — On 11 February 2024, the trial judge ruled under section 46 of the Criminal Justice Act 2003 that the trial could continue without a jury after the jury had been discharged following jury tampering. Leave to appeal was refused.