Lord Chief Justice bolsters right to trial by jury

KS v R [2010] EWCA Crim 1756 (23 July 2010) – Read judgment

J, S, M v R [2010] EWCA Crim 1755 – Read judgment

The Lord Chief Justice has emphasised in two Court of Appeal judgments that the jury-less trials must be a last resort and take place only in truly extreme cases. His comments are clearly aimed at putting the breakers on an accelerating trend of requests for jury-less trials in prosecutions of serious crime, following the ground-breaking but controversial ‘Heathrow heist’ trial.

The Criminal Justice Act 2003 limited for the first time the right to trial by jury in the Crown Court, where trials for serious crimes take place. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.

J, S, M v R involved three men who allegedly conspired to pervert the course of public justice. The judge had ruled that the two pre-conditions to an order for trial without a jury were satisfied. There was evidence of a “real and present danger the jury tampering would take place” meaning that a trial without a jury was necessary in the interests of justice.

The Lord Chief Justice rejected the decision in strong terms, stating that the arrangements for jury-less trials introduced by the 2003 Act “remains and must remain the decision of last resort” and should only be used in “extreme cases”. He gave an example, which would only occur rarely:

where the necessary protective measures constitute an unreasonable intrusion into the lives of the jurors, for example, a constant police presence in or near their homes, day and night and at the weekends, or police protection, which means that at all times when they are out of their homes, they are accompanied or overseen by police officers, again day and night and at the weekend, with its consequent impact on the availability of police officers to carry out their ordinary duties, the confident expectation must be that the jury will perform its duties with its customary determination to do justice.

KS v R was another case where there were serious concerns over potential jury tampering. The case involved an allegation arising from a very substantial VAT fraud known as an MTIC (or “carousel”) fraud. Again, the Lord Chief Justice ruled that the concerns went nowhere near far enough to allow for a jury-less trial. Rather, “a fairly limited level of jury protection could reasonably be provided which would sufficiently outweigh the potential threat of jury tampering.” He went on to restate the principles underlying the trial by jury reforms, just as he had done in J, S, M v R:

We emphasise the link between the nature of the threat and danger of jury contamination, and the steps reasonably available to be taken to reduce the risk to manageable proportions and caution against any unduly alarmist proposals, alarmist, both in the sense of the likely adverse impact on the members of the jury themselves, and on the drains on precious police resources of providing them.

He concluded with a warning shot to judges and police that they must actively manage jury protection, reminding them that “The new statutory arrangements do not undermine, but rather confirm, the need for the issues of jury protection to be handled in a realistic and proportionate way.” In other words, jury-less trials must not become a stress-free alternative to having to protect a jury from influence. Rather, they must only occur where that protection would entail a disproportionate drain on resources.

A reinvigorated right

The Lord Chief Justice’s timely interventions are in line with the stated policy of the new government, which, in its Programme for Government, promised to “protect historic freedoms through the defence of trial by jury.” This was a a reaction to the controversial ‘Heathrow heist’ case earlier this year where, for the first time in 350 years, four men were convicted to long prison sentences without a jury deciding on their guilt or innocence. After three initial trials collapsed, the Court of Appeal ruled that there was a serious danger that the jury could be influenced, and as such set up the fourth, final and judge-only trial. The mens’ lawyers have said they will appeal to the European Court of Human Rights.

The right to trial by jury is currently in flux. Whilst the right forms a significant part of a State’s obligations under Article 6 of the European Convention on Human Rights, this does necessarily extend to every trial. The civil (non-criminal) courts now operate almost entirely without juries, as do Magistrates’ courts, although magistrates are only permitted to impose custodial sentences up to a maximum length of one year.

The Lord Chief Justice’s strong statements of principle have gone some way to bolstering the right to trial by jury in serious criminal trials in the Crown Court, and should make it harder for jury-less trials to be granted. For the time being at least.

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