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Home » Professionals » Legal Guidance » L to O » Non Jury Trials

Non Jury Trials

Updated - 10/01/08

Introduction

Sections 44 to 49 of the Criminal Justice Act 2003 came into force on 24 July 2006. Part 7 makes provision for non jury trial in cases where there is danger of jury tampering or where jury tampering has taken place.

The Director has given his consent that prosecutors must obtain CCP clearance (or the consent of a lawyer of Level E or above to whom the CCP has specifically delegated the power to consent) before applications or representations are made under Part 7 of the Criminal Justice Act 2003.

The Commencement Order brings into force Sections 44 to 50 of the Criminal Justice Act 2003 on 24 July 2006. . The 2003 Act and the Commencement Order No. 13 (SI 2006/1835) can be found on the OPSI website at www.opsi.gov.uk.

The procedure

The prosecution may apply to a judge of the Crown Court at a preparatory hearing for a trial to be conducted without a jury under Section 44 (2). Under Section 44 (3) the judge must grant the application if he is satisfied that the conditions in Section 44 (4) and Section 44 (5) are fulfilled. If he is not so satisfied, he must refuse the application.

The conditions are:

  • there is evidence of a real and present danger that jury tampering would take place and
  • 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.

Section 44 (6) sets out 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 at the trial.

Example (c) makes it clear that the evidence to support an application may come from a wide variety of sources and not necessarily only from evidence of direct threats to the integrity of the jury or individual jurors. Evidence of a wider threat to the integrity of the process may found an application. The rationale for this is that if there is evidence that the defendant is prepared to attack the process, there must be a real and present danger that the jury is also at risk.

There is no indication in the Act or the Explanatory Notes of the standard to which the judge must be satisfied as required by Section 44 (3). However, an application for a non jury trial is a procedural step, not a finding of guilt or innocence. The decision calls for an exercise of judgement involving consideration of the public interest and the legitimate interests of the defendant. The level of evidence required to satisfy the judge will vary from case to case. The court must be adequately and fully informed of the matters which may affect its decision. The manner in which this is done will be for the court to decide in each case.

Applications under Section 44

The consent of the CCP (or a lawyer of Level E or above to whom the CCP has specifically delegated the power to consent) must be obtained before an application under Section 44 is made. Where counsel has been instructed, counsel's views will be taken into account.

An application under Section 44 (2) must be determined at a preparatory hearing (Section 45 (2) and Criminal Procedure Rule 15.4(1)).

Section 7(1) of the Criminal Law Act 1987 and Section 29 of the Criminal Procedure and Investigations Act 1996 are amended by Sections 45 (4) and 45 (6) to (8) inclusive to permit a preparatory hearing to be held for the purpose of determining an application to which Section 45 applies.

If any part of the application concerns PII issues, prosecutors are reminded of Chapter 13 of the disclosure manual which deals with PII applications. Prosecutors may also need to consider whether the procedure for special counsel is needed.

A prosecutor who wants the court to order that the trial will be conducted without a jury under Section 44 must apply under Rule 15.1 (2) of the Criminal Procedure Rules for a preparatory hearing. The application must be made within the time limits set out in Rule 15.2 - not more than 28 days after:

  • committal
  • consent to the preferment of a bill of indictment
  • the service of a notice of transfer
  • where a person is sent for trial, the service of evidence or
  • as soon as reasonably practicable where the reasons do not arise until after the expiry of the time limits (Rule 15.2(2)
  • The court may extend the time limit even after it has expired (Rule 15.2(3))

The parties must be given an opportunity to make representations with respect to the application (Section 45 (3)). A defendant who wants to make written representations concerning an application under Rule 15.1 must, under Rule 15.3:

  • do so, in writing, within 7 days of receipt of a copy of the application and
  • serve those representations on the court an all other parties
  • the representations must include a short explanation of the reasons for opposing the application

Either the prosecution or the defence may appeal to the Court of Appeal both against the refusal or the grant of an order for a non jury trial.

Prosecutors are reminded that although Section 43 (non jury trials for cases of serious and complex fraud) is not being brought into force, nothing prevents a non jury trial in such cases where the conditions in Section 44 or Section 46 are satisfied.

No application under Section 44 can be made where a jury sits under Section 4 A of the Criminal Procedure (Insanity) Act 1964 to determine whether a defendant did the act(s) or omission(s) charged against him as the offence (Section 48 (6) (b)).

Discharge of a jury because of jury tampering; Section 46

This section applies where a judge is minded to discharge a jury during a trial on indictment because jury tampering appears to have taken place (Section 46 (1)). If he is so minded he must inform the parties of the grounds on which he is so minded and allow them an opportunity to make representations (Section 46 (2)).

Prosecutors are reminded that the consent of the CCP (or a lawyer of Level E or above to whom the CCP has specifically delegated the power to consent) must be obtained before representations about a non jury trial - whether in favour or against - are made. The prosecuting advocate's views will be taken into account.

If the judge decides to discharge the jury and is satisfied that jury tampering has taken place, the options available to him or her are set out in Sections 46 (3), (4) and (5). They are:

  • to continue the trial without a jury if to do so would be fair to the defendant or defendants; or
  • if it is necessary in the interests of justice to terminate the trial, to do so;
  • If the judge terminates the trial under Section 46 (4) he may make an order that any new trial must be conducted without a jury if he is satisfied that the conditions in Section 44 are likely to be fulfilled

If the jury is discharged and no order is made about the conduct of any new trial, the prosecution may apply for a non jury trial under Section 44 at a preparatory hearing prior to the commencement of the new trial (Section 46 (7)). It may well be that a preparatory hearing will be required in any event before a new trial. If not, a preparatory hearing can be requested for the purpose of determining an application to which Section 45 of the Criminal Justice Act 2003 applies (Sections 7(1) Criminal Justice Act 1987 and Section 29 Criminal Procedure and Investigations Act 1996 as amended by Sections 45 (4) and 45 (7) Criminal Justice Act 2003).

An order from which an appeal lies will not take effect until after the expiry of the period for bringing an appeal or, if an appeal is brought, before the appeal is finally disposed of or abandoned. (Section 47 (3)).

An appeal by either the prosecution or the defence against the trial judge's decision to continue the trial sitting alone without a jury or against an order that any new trial must be conducted without a jury lies to the Court of Appeal with the leave of the judge or the Court of Appeal (Section 47 (1) and (2)).

Court procedure for a non jury trial

Where a trial is conducted without a jury, the court has all the powers, authorities and jurisdiction it would have had if there had been a jury, as well as the power to determine any questions and to make any finding which would be required to be determined or made by a jury (Section 48 (3)) .

If a defendant is convicted by a court sitting without a jury, the court must give a judgement stating the reasons for the conviction at, or as soon as reasonably practicable after, conviction (Section 48 (5)).

An order for a non jury trial can be made where a jury sits under Section 4 A of the Criminal Procedure (Insanity) Act 1964 to determine whether a defendant did the act(s) or omission(s) charged against him as the offence (Section 48 (6) (b)).

Section 49 deals with the power of the Criminal Procedure Rules Committee to make Rules necessary or expedient for the purposes of Part 7.

Section 50 deals with the application of Part 7 to Northern Ireland.

Reference

Archbold 4-267a- 4-267F