- Applications under Section 44
- Discharge of a jury because of jury tampering - Section 46
- Court procedure for a non-jury trial
Sections 44 to 50 of Part 7 of the Criminal Justice Act (CJA) 2003, came into force on 24 July 2006, and provide for non-jury trial in cases where there is danger of jury tampering or where jury tampering has taken place.
Although section 43 (non jury trials for cases of serious and complex fraud) has been repealed by section 113 Protection of Freedoms Act 2012, nothing prevents a non jury trial in such cases where the conditions in section 44 or section 46 are satisfied.
See Archbold 4-267a to 4-267g
Applications for a non-jury trial - Section 44
Prosecutors must submit any intention to make an application to the Private Office Legal Team following agreement by the Chief Crown Prosecutors/ Deputy Chief Crown Prosecutors/ Heads of Central Casework Divisions when it is intended to make an application under section 44 CJA 2003 for a trial to be conducted without a jury. If an application under section 44 is refused by the Crown Court judge, any prosecution appeal against the refusal must also be referred to the Private Office Legal Team.
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:
- 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 and all other parties.
- The representations must include a short explanation of the reasons for opposing the application.
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) 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.
Guidance on the procedural rules applicable to applications under section 44 was given by the Court of Appeal in R v T (R v H, R v C, R v B)  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 were met.
- The condition under section 44 (5) (namely that, after making due allowance for any reasonable steps that might address and minimise the danger, the judge should be sure that there would be a sufficient likelihood of jury tampering to make trial by judge alone necessary), 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, but 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 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.
To date the trial of Twomey and others (the defendants T, R, C and B referred to above) remains unique, being the only case to be heard by a judge without a jury under the non-jury trial provisions. In R v Twomey, Blake, Hibberd and Cameron  EWCA Crim the Court of Appeal, that included the Lord Chief Justice, confirmed their convictions. See:
The provisions set out in Section 44 were considered by the Lord Chief Justice in the following two cases: J, S, M v R  EWCA Crim 1755, see: http://www.bailii.org/ew/cases/EWCA/Crim/2010/1755.html and KS v R  EWCA Crim 1756, see: http://www.bailii.org/ew/cases/EWCA/Crim/2010/1756.html
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, Sir Igor Judge took the unusual step of publishing anonymised reports of the judgements because of the important public interest principles involved.
In J, S, M v R Wilkie J was satisfied that the two statutory pre-conditions in sections 44(4) and 44(5) were met. The Court of Appeal agreed with his identification of a "real and present danger of jury tampering in the present trial". They disagreed, however, with his finding in relation to the necessary steps that would be 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 judgement 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 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."
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.
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)). 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 they must obtain Chief Crown Prosecutor/ Deputy Chief Crown Prosecutor/Head of Central Casework Division clearance (or the consent of a lawyer of Level E or above to whom the power to consent has been delegated) before applications or representations are made under Part 7 CJA 2003. The prosecuting advocate's views will be taken into account.
The agreement of the Principal Legal Advisor must be obtained by Chief Crown Prosecutors/Deputy Chief Crown Prosecutors/Heads of Central Casework Divisions when it is intended to make an application or representations for a trial to be conducted without a jury.
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 CJA 2003 applies (section 7(1) Criminal Justice Act 1987 and section 29 Criminal Procedure and Investigations Act 1996 as amended by sections 45 (4) and 45 (7) CJA 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)).
A judge who, under section 46, orders the discharge of the jury mid-trial should in most cases also order that he or she continue with the trial without a jury. The fact that he or she has been invited to consider material covered by public interest immunity principles during the trial, or the application, should not normally lead to his or her disqualification R v T (R v H, R v C, R v B)  EWCA Crim 1035.
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)).
Any prosecution appeal must be authorised by the Principal Legal Advisor.
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.