Non-Jury Trials

• Introduction
• Applications for a non-jury trial - Section 44
• Legislation
• Case Law
• Discharge of a jury because of jury tampering - Section 46
• Right of appeal
• Court procedure for a non-jury trial

Introduction

Sections 44 to 50 of Part 7 of the Criminal Justice Act (CJA 2003) provide for non-jury trial in cases where there is danger of jury tampering or where jury tampering has taken place. This allows the prosecution to apply for the trial to be conducted without a jury and for a jury to be discharged during the course of the trial.

Applications for a non-jury trial

Prosecutors must submit any intention to make an application to the, Director of Legal Services once approval has been obtained from the relevant Chief Crown Prosecutor/Head of Division. If an application under Section 44 CJA 2003 is refused by the Crown Court, any prosecution appeal against the refusal must also go through the same process.

Legislation

A Prosecutor who wants the Court to order that the trial will be conducted without a jury, under Section 44 CJA 2003, must apply under CrimPR 3.23 for a preparatory hearing in writing as soon as reasonably practicable and not more than 10 business days after the defendant pleads not guilty.

The prosecutor should serve the application on the court officer and the defence team and explain:

• What evidence there is of a real and present danger that jury tampering would take place;
• What steps, if any, reasonably might be taken to prevent jury tampering; and
• Why, notwithstanding such steps, the likelihood of jury tampering is so substantial as to make it necessary in the interest of justice to order such a trial.

See CrimPR 3.24  for application for non-jury trial containing information withheld from a defendant.

Where the defence wishes to make representations about such an application, representations must be served on the prosecution no more than 10 business days after service of the application and they may ask for a hearing, if it is needed.

Section 45(3) CJA 2003 confirms that the parties must be given an opportunity to make representations with respect to the application.

Under Section 44(3) CJA 2003, the judge must grant the application if they are satisfied that the conditions in Section 44(4) and (5) CJA 2003 are fulfilled. If they are not so satisfied, they must refuse the application.

Section 44(6) CJA 2003 sets out the following non-exhaustive list of examples where there may be evidence of a real and present danger that jury tampering would take place:

• The trial is a retrial and the jury in the previous trial were discharged because jury tampering had taken place
• Jury tampering has taken place in previous criminal proceedings involving any Defendant
• There has been intimidation, or attempted intimidation, of any person who is likely to be a witness at the trial

The third example 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. No application can be made where a jury sits under Section 4A of the Criminal Procedure (Insanity) Act 1964, to determine whether a defendant did the act(s) or omission(s) charged against them as the offence (Section 48(6)CJA 2003).

Case Law

Guidance on the procedural rules applicable to applications under Section 44 CJA 2003 was given by the Court of Appeal in R v T (R v H, R v C, R v B) [2009] EWCA Crim 1035:

• The Crown Court judge should apply the criminal standard of proof (i.e. beyond reasonable doubt) in deciding whether the conditions in Section 44 CJA 2003 are met.
• The condition under Section 44(5) CJA 2003, regarding reasonable steps that might address and minimise the danger, required consideration of the feasibility of the proposed steps and their cost and also whether such steps might lead to an incurable compromise of the jury's objectivity. Also of relevance was the likely impact on the jurors' lives in performing their public responsibilities and whether even the most extensive measures would be sufficient to prevent the improper exercise of pressure through family members.
• The evidence relied on by the Crown should be disclosed to the fullest extent possible. However, it would be contrary to the legislative purpose to make an order for disclosure which would, in effect, make the Crown discontinue the prosecution in order to prevent disclosure of sensitive material. Accordingly, it was proper and permissible for the judge to take into account PII material which was supplied ex parte. In an appropriate case the Court might seek assistance from special counsel, although in the present case the Court thought it unlikely that special counsel would have been of assistance and accordingly none was appointed.
• Normally, a Section 44 CJA 2003 application made at a preparatory hearing should be heard by the Presiding Judge of the Circuit. If the application was granted then, subject to any appeal, the Presiding Judge should identify a senior and experienced judge to conduct the trial.

The above case serves as a precedent for non-jury trials and sets out a number of important principles. In R v Twomey, Blake, Hibberd and Cameron [2011] EWCA Crim 8 the Court of Appeal, that included the Lord Chief Justice, confirmed their convictions.

The provisions set out in Section 44 CJA 2003 were also considered by the Lord Chief Justice in the following two cases: J, S, M v R [2010] EWCA Crim 1755, and KS v R [2010] EWCA Crim 1756.

In J, S, M v R, the Court of Appeal agreed with the original judge’s identification of a "real and present danger of jury tampering in the present trial". However they disagreed on necessary steps required to address the risk, concluding:

"Given that the estimated length of the trial is 2 weeks, we disagree with the judge that the necessary protective measures would either impose an unacceptable burden on the jurors by intruding for a prolonged period on their ordinary lives, or that the jury, properly managed and directed, would be inhibited from giving the case proper attention and whether convicting or acquitting, returning a true verdict".

The Lord Chief Justice emphasised in the judgment that:

"The trial of a serious criminal offence without a jury ... remains and must remain the decision of last resort, only to be ordered when the Court is sure (not that it entertains doubts, suspicions or reservations) that the statutory conditions are fulfilled."

In KS v R [2010] EWCA Crim 1756, the Lord Chief Justice with a differently constituted Court of Appeal, stated that:

"The proposed protective measures must be proportionate to the threat." On the facts of the case the Court found that: "A fairly limited level of jury protection could reasonably be provided which would sufficiently outweigh the potential threat of jury tampering."

In both cases the Court of Appeal overturned High Court decisions that trials were to be conducted by a judge alone, emphasising the importance of trial by jury. Despite both trials being ongoing, the Lord Chief Justice took the unusual step of publishing anonymised reports of the judgments because of the important public interest principles involved.

Discharge of a jury because of jury tampering - Section 46 CJA 2003

Prosecutors must submit any intention to make an application to the Director of Legal Services, following agreement from the relevant Chief Crown Prosecutor/Head of Division.

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) CJA 2003). 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) CJA 2003).

In the case ofMcManaman [2016] 1 WLR 1096, the Court of Appeal stressed the importance of the judge acting as soon as he had sufficient material to form a conclusion that there had been tampering, rather than wait for the conclusion of the police inquiry. The Court also stressed that there was no need for there to be a proven link between the tampering and the accused, especially as tampering was often likely to have been undertaken by a third party.

The Court observed that any investigation into an allegation of jury tampering must be conducted with the highest priority and urgency and under the close supervision of a senior officer of police who must personally provide regular reports to the judge as the investigation progresses.

If the judge decides to discharge the jury and is satisfied that jury tampering has taken place, the options available to them are set out in Sections 46(3), (4) and (5) CJA 2003. 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.

If the judge terminates the trial under Section 46(4) CJA 2003 they may make an order that any new trial must be conducted without a jury if they are 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 CJA 2003 at a preparatory hearing, prior to the commencement of the new trial (Section 46(7) CJA 2003). 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 CJA 2003 applies.

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) CJA 2003).

A judge, who orders the discharge of the jury mid-trial, should in most cases also order that they continue with the trial without a jury. The fact that they have been invited to consider material covered by public interest immunity principles during the trial, or the application, should not normally lead to their disqualification R v T (R v H, R v C, R v B) [2009] EWCA Crim 1035.

Right of appeal

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 (Sections 47(1) and (2) CJA 2003).

Any prosecution appeal must be authorised by the Director of Legal Services as detailed above.

Court procedure for a non-jury trial

Where a trial is conducted without a jury, the trial will proceed in the usual way and 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) CJA 2003).

If a defendant is convicted by a court sitting without a jury, the court must give a judgment stating the reasons for the conviction at, or as soon as reasonably practicable after, conviction (Section 48(5) CJA 2003).

No application can be made where a jury sits under Section 4A 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) CJA 2003).