A flying start

The new year has started with unusual vivacity: three of the most exceptional powers in our legal system are under scrutiny at the same time. The first English criminal trial began at the Royal Courts of Justice '“ an unusual venue for criminal lawyers, who generally only enter those marble halls when a case has gone pear shaped (like so many of us after Christmas) and they need a Court of Appeal massage and detox service.

The trial of four men on 18 counts relating to armed robbery started before Mr Justice Treacy '“ and a jury box full of the press '“ with some interesting procedural points, not least the question of how he was to deal with possibly prejudicial disclosure issues.

The power to dispense with juries under section 44 of the Criminal Justice Act 2003 provides that a judge must order that a trial be conducted without a jury where two conditions are satisfied. The first is that there is evidence of a real and present danger that jury tampering would take place. The second is that 'notwithstanding any steps 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'.

On paper it seems that only if nothing can be done to stop the jury being nobbled, then a judge alone is the last resort '“ in reality the requirement of reasonableness brings in cost and resources arguments. In this case, there was evidence of tampering which came to light at the end of a long trial before Judge Roberts at the Bailey, which was accepted as predicative of future risk in any other trial. The jury was discharged, and not one but two packages of steps to protect a new jury from being got at were devised. One would have cost £1.5m and used 32 police officers, the other £6m and 82 officers.

Risk of injustice

With such protection possible, another Bailey judge refused the prosecution's application to hear the trial by judge alone. The Crown's interlocutory appeal succeeded. The Court of Appeal held that the risk of injustice in this case was so great that even the most elaborate protective package would not obviate it, and that in any event it was not reasonable to impose the financial and resources burden of it on the police, or impose the restrictions necessitated by the package on the jury themselves.

In an argument taken from Northern Irish jurisprudence, it was agreed that onerous protective measures could also prejudice jurors against the defendants themselves. The precise nature of the measures to protect the jury were kept secret from the defence, logically enough, as was the evidence about what approaches were made to the jury, how the police knew about this and the evidential basis for future risks to other juries.

The material was examined under PII conditions in accordance with PII principles '“ the defence argument that they were prevented from making meaningful representations because they had not seen the material was neatly countered: if evidence of the clear and present danger of jury tampering was so sensitive that it could be harmful to police methodology or useful to criminals, then discontinuing a case because it could not be disclosed would ensure jury tampering worked.