TRIAL BY JUDGE ALONE R-v- Twomey and Others [2009] EWCA 1035

Section 44 of the CJA 2003, Application by prosecution for trial to be conducted without a jury where danger of jury tampering.

The decision of the Court of Appeal has broken new legal ground by establishing that defendants can lose their right to trial by jury on the most serious charges when there is a real and present danger of jury tampering, and when normal protective measures would be ineffective.  Under s 44 of the CJA 2003, the judge is required to make an order for a trial without a jury if the conditions in subsections (4) and (5) are fulfilled.  

It was further held that the constitutional right to trial by jury was so deeply entrenched that, in the absence of express statutory language indicating otherwise, an application under s 44 should not be granted unless the judge was sure, applying the criminal standard of proof, that both statutory conditions were fulfilled.  

Section 44(4) is established when the judge is sure that there is a real and present danger that the right to jury trial would be abused or misused by jury tampering. The evidence which might demonstrate that danger is not confined to evidence which would be admissible at a trial. Section 44(5) requires that, after making due allowance for any reasonable steps which might address and minimise the danger of jury tampering, the judge should be sure that there would be a sufficiently high likelihood of jury tampering to make a trial by judge alone necessary. The practicability of measures, the cost of providing them, the logistical difficulties that they might give rise to and the anticipated duration of any necessary precautions are all relevant matters for consideration.  Their Lordships also addressed the important issue whether dispensing with a jury trial was in breach of Art 6 of the European Convention on Human Rights. The Court stated that trial by judge alone, where the necessary procedural safeguards available in a trial by jury were and remained available to the defendant, was not an unfair trial. The trial would take place before an independent tribunal and for the purposes of Art.6 of the European Convention on Human Rights it is irrelevant whether the tribunal is judge and jury or judge alone.                                                                       

BAD CHARACTER

EVIDENCE/ADMISSIBILITY R-v-Fox [2009] EWCA Crim 653         This case is useful in identifying precisely what qualifies as “evidence of bad character” under the 2003 Act. The Court of Appeal held that the trial judge should have assessed each of the three aspects of the evidence sought to be admitted separately, and decided whether (1) it should be admitted as evidence of bad character, and if so, should have given his reasons under s. 110 of the 2003 Act, and (2) if the evidence did not qualify as evidence of bad character, whether it should be admitted at common law.The following points are of interest:  1.  Understanding the scope of “bad character evidence” involves reading both s. 98 and s. 112 in combination. By s. 98, evidence of a person’s “bad character” is “evidence of, or a disposition towards misconduct on his part”. Misconduct is defined in s. 112 as “commission of another offence or other reprehensible behaviour”. The lack of further definition has been criticised in a recent government report on the “ success” of the character provisions in the 2003 Act,  “Research into the Impact of Bad Character Provisions on the Courts” by Morgan Harris Burrows, MOJ Research Series 5/09, March 2009, p18. 2.  Given the ambiguity of the concept of bad character, the structure of the 2003 Act, and the potential damage that can be done to a defendant’s case from admission, judges may need to adopt a counter-intuitive approach. The broader the definition of bad character and the more conduct is treated as bad character evidence, the better protected the defendant, (or non- defendant in cases under s.100) is. Once evidence has been classified as bad character evidence, the party seeking to adduce it will have to satisfy one of the relevant gateways under s. 100 or s. 101. 3.      Adopting a narrow interpretation and treating defendant’s earlier conduct as not involving bad character evidence does the defendant no favours: his earlier conduct then becomes admissible on the threshold test of relevance alone with none of the other safeguards in the 2003 Act, meagre as they may be.

 SENTENCE UPDATE   SUPPLIER OF KILLER GUN – expect sever sentence/ consecutive prison terms Attorney- General’s Reference (No 16 of 2009) Regina-v- Yates [2009] EWCA Crim 2439, Times, November 6, 2009  An offender who chose to be loyal to a gang member, who had committed murder and      assisted in impeding his apprehension, had to expect a substantial prison sentence. This is what the Court of Appeal held when granting an application by the Solicitor- General on behalf of the Attorney-General  under s.6 of the Criminal Justice Act 1988, for leave to refer as unduly lenient a total sentence of seven years detention  in a young offender institution following conviction for one offence of possessing a prohibited firearm contrary to s. 5(1) of the Firearms Act 1968, and concurrent prison terms of six years for two offences of assisting an offender contrary to s. 4(1) of the Criminal Law Act 1967.       On behalf of the Attorney- General, it was submitted that this was a case for consecutive rather than concurrent sentences. Their Lordships agreed: when assessing sentence in such cases there were three questions to be addressed: (1) was the nature and extent of the criminality of the offender for whom assistance was provided; (2) was the nature and extent of the assistance actually provided, and (3) was the extent to which the efforts at assisting the killer had damaged the interests of justice.        On the facts of this case, the gun used by the killer had been made available to him by the offender only minutes before the murder. Thereafter, together with others, the offender assisted the killer to conceal the gun, to dispose of his clothing and to wash away any possible evidence which might link the killer with the murder. Their Lordships held that sentences in this type of case should normally be consecutive to the sentence imposed for any other offence. The six-year prison sentence for assisting an offender was ordered to run consecutively, but was reduced to five years on each count. The detention sentence was increased from seven years to twelve years.

   NO CREDIT FOR CURFEW TIME ON BAIL R-v- Barrett [2009] EWCA, Times, October 5, 2009 In sentencing a defendant to imprisonment a judge was entitled to refuse to give credit for time spent on bail subject to curfew, despite that fact that, if the defendant had also been electronically tagged during that time, he would have had a statutory entitlement to such credit. Under s 240 A of the CJA 2003, as inserted by s.21 (4) of the Criminal Justice andImmigration Act 2008, if an offender was remanded on bail subject to a curfew whichrequired him to remain at a certain place for not less than nine hours in nay given day, credit was given for half the number of days during which the bail was subject to that condition. The Court of Appeal held that the appellant did not come within that section because he had not been electronically tagged, which was a further condition for the application of section 240A. Their Lordships stated that it was not for the courts to re-write that statute and to say that it was to apply generally in cases which did not merit its conditions.