(1)This section applies where one or more defendants are to be tried on indictment for one or more offences.
(2)The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.
(3)If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.
(4)The first condition is that there is evidence of a real and present danger that jury tampering would take place.
(5)The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.
(6)The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place—
(a)a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,
(b)a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,
(c)a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial.
Cases considering section 44 12
[2015] UKPC 31 · 25 June 2015Interprets
The section was considered as the English statutory scheme for ordering trial without a jury where jury tampering was in prospect. The Board distinguished its structure from the Turks and Caicos provision. (see paras [44]–[49])
The provision required the judge to be satisfied that both statutory conditions were fulfilled before ordering trial without a jury. The Board noted the different structure of this scheme. (see paras [44], [48])
The first English condition concerned evidence of a real and present danger of jury tampering. The Board observed that this could involve proof of past events as well as predictive assessment. (see paras [44], [48])
The second English condition required assessment of whether, despite reasonable protective measures, jury tampering would be sufficiently likely to make judge-alone trial necessary in the interests of justice. The Board treated this as a balancing exercise. (see paras [44], [48])
The examples of cases involving a real and present danger of jury tampering were treated as recognising that past tampering will often demonstrate the first condition. (see paras [44], [48])
[2011] EWCA Crim 8 · 20 January 2011
The court applied section 44 as the statutory jurisdiction for a trial on indictment by judge alone. It held that the statutory displacement of a jury concerned mode of trial and did not diminish the fairness required at the ensuing trial. (see paras [32]-[45])
The court held that the statutory condition of evidence of a real and present danger of jury tampering had been satisfied to the criminal standard. (see paras [24]; [33]; [45])
The court held that reasonable protective measures could not adequately prevent jury tampering and that a judge-alone trial was necessary in the interests of justice. (see paras [24]; [33]; [45])
[2010] EWCA Crim 1756 · 23 July 2010
The court treated section 44(4) as requiring a real and present danger of jury tampering. It accepted that this condition was met, but confirmed that it could not by itself justify a judge-alone trial (see paras [3]; [6]).
The court held that section 44(5) was not satisfied. The threat and reasonable protective measures had to be assessed proportionately, and limited safeguards could reduce this risk to manageable proportions (see paras [3]; [7]; [8]).
What each judgment says about section 44 is in the case-law panel in the full Act.
251.Sections 44 and 46 provide for a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering.
252.The power of a judge to discharge a jury on the grounds of jury tampering exists at common law. The phrase “jury tampering” is intended to be understood from that context as covering a range of circumstances in which the jury’s independence is, may be or may appear to be compromised, for example, because of actual or attempted harm or threats to, or intimidation or bribery of, a jury or any of its members. It could also include improper approaches to a juror’s family or friends, or threats etc in respect of a juror’s property.
253.Section 44 allows the prosecution to make an application for a juryless trial. For this to be granted, the court must be satisfied that there is evidence of a real and present danger that jury tampering would take place (subsection (4)); this echoes the test in considering whether police protection should be ordered in respect of a jury. In addition, the court must be satisfied that the danger of jury tampering is so substantial, notwithstanding any steps (including police protection) that could reasonably be taken to prevent it, as to make it necessary in the interests of justice for the trial to be conducted without a jury.
254.Subsection (6) sets out examples of what might constitute evidence of a real and present danger of jury tampering.
255.Section 46 concerns trials already under way where jury tampering has, or appears to have, occurred. In these circumstances, if the judge is minded to discharge the jury (in exercise of his common law powers) he must notify the prosecution and defence that he is so minded, explain his reasons for doing so, and hear what each party has to say on the matter (subsection (2)). If the judge then decides to discharge the jury (in the exercise of his common law powers) and is satisfied that tampering has occurred, he may order that the trial should continue without a jury if he is satisfied that this would be fair to the defendant (subsection (3)). Subsection (4) provides that where the judge considers it necessary in the interests of justice to terminate the trial, he must terminate it. In that event, he may order a retrial, and if he does so, he will have the option of ordering that the retrial should take place without a jury (subsection (5)). However, if he is to order the retrial is to take place without a jury, he will need to have satisfied himself that both the conditions in section 44 are likely to be met in respect of the retrial.