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In the wake of the recent Court of Appeal interlocutory judgment giving the green light for the first trial on indictment by a judge alone, David Wolchover and Anthony Heaton-Armstrong propose some convenient and inexpensive jury tampering countermeasures
The Northern Ireland judge-only Diplock courts for the trial of cases involving a terrorist dimension linger on, though nowadays with a much reduced throughput. But while the risk of jury intimidation and religious bias may have waned in Ulster the perceived problem of jury tampering—or “nobbling”—had supposedly increased in England and Wales to such an extent that provision was finally enacted in the Criminal Justice Act 2003 (“CJA 2003”), s 44 for trials on indictment to be conducted where appropriate without a jury.
On 18 June 2009 the Court of Appeal sanctioned the first such trial without a jury in a case in which the last of three previous trials had been aborted as a result of alleged “serious” jury interference: R v Twomey; R v Blake; R v Cameron; R v Hibberd [2009] EWCA Crim 1035, (2009) Times, 25 June; sub nom R v T [2009] 3 All ER 1002, reversing a decision by Calvert-Smith J in which he held that although there was a real and present danger of interference, a workable albeit expensive package of measures for the police protection of the jury would suffice to reduce the risk to an acceptable level.
Although we accept that the real purpose of s 44 may be deterrence we contend that police protection of jurors is unnecessary and that a few simple and relatively inexpensive administrative measures can eliminate virtually all risk of intimidation or embracery. In one of Counsel’s sister journals we recently proposed a scheme of last resort (“Star Chamber or a Secret Gang of 12?” (2009) 173 CL&JW 420, 4 July). In this article we shall concentrate on less controversial measures which we contend should prove adequate. There are in essence two limbs to the measures: concealment of the jurors’ names and effective concealment of their appearance from the public gaze. By severely restricting access to their identity the jurors can be put beyond reach of those who would seek to intimidate or bribe them and police protection is thereby rendered otiose.
It is understood that as an antitampering measure the Court of Appeal in R v Twomey, in the course of submissions, did consider the possible concealment of the jurors’ names and addresses and the use of numbers instead. This is a potent weapon but requires some additional safeguards to avert the possibility that a member of court staff might be suborned to collaborate with confederates of the defendant. Court Service offi cials responsible for issuing jury summonses would obviously need to know the names and addresses of prospective special jurors for the purpose of posting summonses. But there knowledge of the names and addresses of jurors summoned for special service would end. Court staff and jury bailiffs to whom special jurors report for service would not be given their particulars. The summoning office would issue special jurors with a swipe card and pin number which would be presented at court with the jurors keying in their pin numbers. The special jurors would be advised that they should not give their names to court staff . Any urgent contact with special jurors at home during the trial could go via the jury summonsing office.
On s 44 applications defendants who agreed to jurors’ names being withheld as a condition for not losing their right to jury trial would implicitly be waiving their right to inspect the names and addresses of the panel under s 5 of the Juries Act 1974.
A more complex series of logistical problems is presented by the need to conceal the physical appearance of the jurors from potential jury-tamperers confederate with the accused. It is normally assumed that where this involves reconfiguring the court room it will be limited to preventing the public from having sight of the jury, a practice employed in a number of trials at the Old Bailey in the early 1980s as a result of a series of alleged tampering incidents. The design of the courtrooms in the 1972 building conveniently lends itself to this. The jury box can be relocated beneath the public gallery, with access to the well of the court being stringently policed to exclude persons not previously vetted.
Defendants in custody would of course be unavailable to identify jurors to confederates as they arrive at or leave the courthouse. Those on bail could be prevented from identifying jurors after court by a requirement for them to remain in the courtroom until suffi cient time had elapsed for the jurors to have left the courthouse, the adaptation of an order frequently made to avoid awkward encounters. Equally, defendants on bail could be prevented from pointing out jurors to confederates before the court sits in the morning by requiring them to surrender before some suitably early time and warning the jury not to arrive until well after that deadline. It would be enforced against the defendant by the withdrawal of bail for breach.
However, a more effective safeguard would be to bring the jury to court from a remote secret assembly point in a bus fitted with tinted windows. Ought this also to be employed for drop-off at the end of each day? The argument against is that the bus might be followed to its destination and disembarking jurors thereafter followed to their homes, whereas special jurors leaving a large Crown Court building such as the Old Bailey would be indistinguishable from the host of other jurors leaving at broadly the same time.
The argument in favour of bussing from court relates to the risk that a member of the defence legal team may be corrupt.
During a Channel Four News item on the evening after the Court of Appeal judgment the solicitor and commentator David Corker suggested that corrupt solicitors could offer to supply confederates with a description of particular jurors. A more eff ective stratagem would be simply to point out the jurors to confederates outside the court building. Corker omitted to say why he exempted barristers from this gloomy prognostication. Could the risk of corrupt practice be eliminated by vetting all defence team members? As part of the agreed package of measures for any particular trial solicitors could give an undertaking that they and their representatives would stay in the courtroom for as long as it took for the jury to clear the building. For form’s sake advocates could give a personal undertaking to stay put. But it is difficult to see how it would be possible to stop a corrupt and lowly clerk from taking off a day or two in order to point out the jurors to confederates. Bussing jurors from court may be the only effective antidote, necessitating the use of police surveillance to ensure the bus was not followed to the drop-off and the use of police buses securely garaged to prevent the surreptitious installation of tracking devices.
The use of bussing in both directions would also prevent witnesses potentially hostile to the prosecution from identifying jurors to confederates.
If it were concluded that the measures suggested so far were inadequate and there was still scope for confederates to discover the identity of the jurors, resort could be had to the scheme we described in our Criminal Law & Justice Weekly article: concealment in court behind a two-way mirror. Only the judge would be able to see the jury via a CCTV camera, and the only court staff having contact with them would be specially vetted jury bailiffs.
In his Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 which brought in the Diplock courts, Sir George Baker —in answer to the suggestion that the risk of intimidation might be diminished by a system of anonymity for jury members— off ered the argument that anonymity was a serious derogation from the right of the accused (11.04.84, Cmnd 9222, para 107). Not so serious, goes the answer, as the denial of jury trial altogether.
David Wolchover, 7 Bell Yard. Anthony Heaton-Armstrong, 9-12 Bell Yard
Section 44 of the Criminal Justice Act 2003 provides that on an application being made by the prosecution a Crown Court judge must order the trial to be conducted without a jury if satisfi ed that there is evidence of a “real and present danger that jury tampering would take place” and that “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.” Evidence of a real and present danger may arise from the fact that the jury in a previous trial was discharged because of tampering, that tampering has occurred in previous criminal proceedings involving any of the defendants, or that witness intimidation has occurred in the case: s 44(6).
On 18 June 2009 the Court of Appeal sanctioned the first such trial without a jury in a case in which the last of three previous trials had been aborted as a result of alleged “serious” jury interference: R v Twomey; R v Blake; R v Cameron; R v Hibberd [2009] EWCA Crim 1035, (2009) Times, 25 June; sub nom R v T [2009] 3 All ER 1002, reversing a decision by Calvert-Smith J in which he held that although there was a real and present danger of interference, a workable albeit expensive package of measures for the police protection of the jury would suffice to reduce the risk to an acceptable level.
Although we accept that the real purpose of s 44 may be deterrence we contend that police protection of jurors is unnecessary and that a few simple and relatively inexpensive administrative measures can eliminate virtually all risk of intimidation or embracery. In one of Counsel’s sister journals we recently proposed a scheme of last resort (“Star Chamber or a Secret Gang of 12?” (2009) 173 CL&JW 420, 4 July). In this article we shall concentrate on less controversial measures which we contend should prove adequate. There are in essence two limbs to the measures: concealment of the jurors’ names and effective concealment of their appearance from the public gaze. By severely restricting access to their identity the jurors can be put beyond reach of those who would seek to intimidate or bribe them and police protection is thereby rendered otiose.
It is understood that as an antitampering measure the Court of Appeal in R v Twomey, in the course of submissions, did consider the possible concealment of the jurors’ names and addresses and the use of numbers instead. This is a potent weapon but requires some additional safeguards to avert the possibility that a member of court staff might be suborned to collaborate with confederates of the defendant. Court Service offi cials responsible for issuing jury summonses would obviously need to know the names and addresses of prospective special jurors for the purpose of posting summonses. But there knowledge of the names and addresses of jurors summoned for special service would end. Court staff and jury bailiffs to whom special jurors report for service would not be given their particulars. The summoning office would issue special jurors with a swipe card and pin number which would be presented at court with the jurors keying in their pin numbers. The special jurors would be advised that they should not give their names to court staff . Any urgent contact with special jurors at home during the trial could go via the jury summonsing office.
On s 44 applications defendants who agreed to jurors’ names being withheld as a condition for not losing their right to jury trial would implicitly be waiving their right to inspect the names and addresses of the panel under s 5 of the Juries Act 1974.
A more complex series of logistical problems is presented by the need to conceal the physical appearance of the jurors from potential jury-tamperers confederate with the accused. It is normally assumed that where this involves reconfiguring the court room it will be limited to preventing the public from having sight of the jury, a practice employed in a number of trials at the Old Bailey in the early 1980s as a result of a series of alleged tampering incidents. The design of the courtrooms in the 1972 building conveniently lends itself to this. The jury box can be relocated beneath the public gallery, with access to the well of the court being stringently policed to exclude persons not previously vetted.
Defendants in custody would of course be unavailable to identify jurors to confederates as they arrive at or leave the courthouse. Those on bail could be prevented from identifying jurors after court by a requirement for them to remain in the courtroom until suffi cient time had elapsed for the jurors to have left the courthouse, the adaptation of an order frequently made to avoid awkward encounters. Equally, defendants on bail could be prevented from pointing out jurors to confederates before the court sits in the morning by requiring them to surrender before some suitably early time and warning the jury not to arrive until well after that deadline. It would be enforced against the defendant by the withdrawal of bail for breach.
However, a more effective safeguard would be to bring the jury to court from a remote secret assembly point in a bus fitted with tinted windows. Ought this also to be employed for drop-off at the end of each day? The argument against is that the bus might be followed to its destination and disembarking jurors thereafter followed to their homes, whereas special jurors leaving a large Crown Court building such as the Old Bailey would be indistinguishable from the host of other jurors leaving at broadly the same time.
The argument in favour of bussing from court relates to the risk that a member of the defence legal team may be corrupt.
During a Channel Four News item on the evening after the Court of Appeal judgment the solicitor and commentator David Corker suggested that corrupt solicitors could offer to supply confederates with a description of particular jurors. A more eff ective stratagem would be simply to point out the jurors to confederates outside the court building. Corker omitted to say why he exempted barristers from this gloomy prognostication. Could the risk of corrupt practice be eliminated by vetting all defence team members? As part of the agreed package of measures for any particular trial solicitors could give an undertaking that they and their representatives would stay in the courtroom for as long as it took for the jury to clear the building. For form’s sake advocates could give a personal undertaking to stay put. But it is difficult to see how it would be possible to stop a corrupt and lowly clerk from taking off a day or two in order to point out the jurors to confederates. Bussing jurors from court may be the only effective antidote, necessitating the use of police surveillance to ensure the bus was not followed to the drop-off and the use of police buses securely garaged to prevent the surreptitious installation of tracking devices.
The use of bussing in both directions would also prevent witnesses potentially hostile to the prosecution from identifying jurors to confederates.
If it were concluded that the measures suggested so far were inadequate and there was still scope for confederates to discover the identity of the jurors, resort could be had to the scheme we described in our Criminal Law & Justice Weekly article: concealment in court behind a two-way mirror. Only the judge would be able to see the jury via a CCTV camera, and the only court staff having contact with them would be specially vetted jury bailiffs.
In his Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 which brought in the Diplock courts, Sir George Baker —in answer to the suggestion that the risk of intimidation might be diminished by a system of anonymity for jury members— off ered the argument that anonymity was a serious derogation from the right of the accused (11.04.84, Cmnd 9222, para 107). Not so serious, goes the answer, as the denial of jury trial altogether.
David Wolchover, 7 Bell Yard. Anthony Heaton-Armstrong, 9-12 Bell Yard
Section 44 of the Criminal Justice Act 2003 provides that on an application being made by the prosecution a Crown Court judge must order the trial to be conducted without a jury if satisfi ed that there is evidence of a “real and present danger that jury tampering would take place” and that “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.” Evidence of a real and present danger may arise from the fact that the jury in a previous trial was discharged because of tampering, that tampering has occurred in previous criminal proceedings involving any of the defendants, or that witness intimidation has occurred in the case: s 44(6).
In the wake of the recent Court of Appeal interlocutory judgment giving the green light for the first trial on indictment by a judge alone, David Wolchover and Anthony Heaton-Armstrong propose some convenient and inexpensive jury tampering countermeasures
The Northern Ireland judge-only Diplock courts for the trial of cases involving a terrorist dimension linger on, though nowadays with a much reduced throughput. But while the risk of jury intimidation and religious bias may have waned in Ulster the perceived problem of jury tampering—or “nobbling”—had supposedly increased in England and Wales to such an extent that provision was finally enacted in the Criminal Justice Act 2003 (“CJA 2003”), s 44 for trials on indictment to be conducted where appropriate without a jury.
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