Criminal Justice Act 2003, section 46

Discharge of jury because of jury tampering

Part 7 Trials on indictment without a jury

(1)This section applies where—

(a)a judge is minded during a trial on indictment to discharge the jury, and

(b)he is so minded because jury tampering appears to have taken place.

(2)Before taking any steps to discharge the jury, the judge must—

(a)inform the parties that he is minded to discharge the jury,

(b)inform the parties of the grounds on which he is so minded, and

(c)allow the parties an opportunity to make representations.

(3)Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied—

(a)that jury tampering has taken place, and

(b)that to continue the trial without a jury would be fair to the defendant or defendants;

but this is subject to subsection (4).

(4)If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial.

(5)Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled.

(6)Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial.

(7)Subject to subsection (5), nothing in this section affects the application of section [F7343 orF73] 44 in relation to any new trial which takes place following the termination of the trial.

Cases considering section 46 10

William Sartin v R (No 2)

[2024] EWCA Crim 764 · 3 July 2024

The court treated section 46 as Parliament’s provision for a trial to continue without a jury after jury tampering. The ordinary course is continuation unless unusual circumstances, including disqualifying bias, make that unfair. (see paras [1]; [33]-[34]; [41]-[42])

William Sartin v R

[2024] EWCA Crim 766 · 3 July 2024

The court treated the Crown Court’s decision to continue the trial without a jury as a ruling made under this provision. The evidential basis for the ruling was material to refusing the adjournment (see paras [1]; [13]; [16]). The court applied the provision as requiring a judge to assess jury tampering on the material then available, while balancing expedition against the prospects of further material evidence. The Crown Court judge was entitled to make that assessment (see para [13]).

Shahid Mohammad v Palvaan Islaam

[2024] EWCA Crim 34 · 24 January 2024Interprets

The court interpreted section 46 as a post-tampering scheme. It permits continuation without a jury only where the statutory conditions are proved and termination is not necessary in the interests of justice. (see paras [32]; [34]-[35]; [37]-[42]) The court identified the initial condition: during a trial on indictment, the judge is minded to discharge the jury because tampering appears to have occurred. (see para [34]) The court identified the procedural requirement to inform the parties of the grounds for a proposed discharge and allow representations. It held that continuation need not be considered before or alongside discharge. (see paras [34]; [37]) The court applied the power to continue the trial without a jury. The judge was entitled to find, to the criminal standard, that tampering had occurred and that continuation would be fair to all defendants. (see paras [34]-[35]; [39]-[41]; [45]) The court applied the requirement to terminate if necessary in the interests of justice. It accepted the judge’s conclusion that termination was unnecessary, given the public interest, the age of the allegations, witness-memory concerns, the trial stage, and retrial delay. (see paras [34]-[35]; [42]) The court described the power to order a juryless new trial after termination if the section 44 conditions are likely to be met. (see para [34])

What each judgment says about section 46 is in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F73Words in s. 46(7) repealed (E.W.) (1.5.2012) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 148(3), Sch. 10 Pt. 10

Commencement

  1. I30S. 46 wholly in force at 24.7.2006, see s. 336(3) and S.I. 2006/1835, art. 2 (subject to art. 3)