In criminal courts the most serious offences are tried on indictment and are normally heard in front of a judge and jury. The principle provides that when someone is on trial for a serious crime, he has the right to be tried by a jury of his peers and they are the sole determinants of the defendant’s guilt.
The judge’s role is to ensure the correctness of the procedure and decide on admissibility of evidence. Therefore, in criminal trials the judges are not allowed to assume the role of a fact finder, save for limited circumstances such as no case to answer applications.
Judge-only trials application
An exception to the right to trial by jury rule is provided for under the Criminal Justice Act 2003 (CJA 2003), which allows a judge-only trial to be held where there is a ‘real and present’ danger of jury tampering.
Jury tampering is defined as threatened or actual harm, intimidation or bribery of the jury or any of its members, or their family friends or property.
The Act provides a non-exhaustive list of examples of real and present danger including where the case is a retrial and the jury in the previous hearing was discharged because of jury tampering. Danger could also be perceived where jury tampering has taken place in previous criminal proceedings involving the defendant or there has been intimidation of a likely witness in the trial.
If such danger exists in the course of an already running trial, the prosecution can apply for the trial to be conducted without a jury. The application would be dealt with at a preparatory hearing.
If the trial has not yet begun, the prosecution needs to satisfy the court that:
- there is evidence of a real and present danger that jury tampering will take place; and
- there is so substantial a risk of jury tampering that it is necessary in the interest of justice for the trial to be conducted without a jury, notwithstanding any steps which might reasonably be taken to prevent the risk.
Where the jury has been discharged in the course of a trial because of jury tampering, the prosecution can apply for the proceedings to continue in the absence of a jury.
The judge’s powers to hold a trial without a jury
If a trial is already underway, the judge could consider discharging the jury in accordance with his common law powers on the basis that jury tampering appears to have occurred. The judge must hear representations from the defence and prosecution as to the manner in which he should proceed. Those representations would not be binding on the court but provide a ground for the judge to make his decision.
If s/he decides to discharge the jury, s/he may decide to proceed with the trial without a jury provided that s/he is satisfied it would be fair to the defendant to do so.
The judge also has the option of terminating the current trial and ordering that the retrial is to take place without a jury.
Right of appeal
Following any decision made by the court in respect of an application for a trial without a jury, there is a right of appeal to the Court of Appeal by both defence and prosecution. There is also a right to appeal against any order to continue a trial in the absence of a jury or for a retrial to be conducted in the absence of a jury.
Court procedure for no-jury trials
Whenever an order has been made for a trial to be carried out or continued in the absence of the jury, it is conducted in the same manner and order as an ordinary trial. The court is to have all the powers, authorities and jurisdiction which the court would have had if the trial had been conducted or continued with a jury.
One difference is that the function of the fact finder will be performed by the judge alone and if the defendant is convicted, the judge must give reasons for the conviction.