Judge, jury and the principles on indictment trials
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 role of the judge in the course of the proceedings is to ensure the correctness of the procedure and decide on matters of 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.
An exception to the rule that a trial on indictment is heard by a judge and jury could be seen where there is a perceived danger of jury tampering. The Criminal Justice Act 2003 establishes the provisions governing those situations.
Judge-only trials on application
The exception provides that a judge-only trial could be held where there is a perceived danger of jury tampering. Therefore, the concepts of both jury tampering and real and present danger would have to be considered.
Defining jury tampering
For these purposes jury tampering is defined as to include threatened or actual harm, intimidation or bribery of the jury or any of its members, or their family friends or property.
Evidence of real and present danger
The legislative framework 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. Further, danger could 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 is then able to 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 need to satisfy the court of both conditions that:
(a)there is evidence of a real and present danger that jury tampering will take place
(b)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
Additionally, where the jury has been discharged in the course of a trial because of jury tampering, the prosecution is able to apply for the proceedings to continue in the absence of a jury.
The judge’s powers to hold a trial without a jury
If trial is already under way, the judge could consider discharging the jury in accordance with his common law powers on the basis that jury tampering appears to have occurred. Then 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 providing a ground for the judge to make his decision.
If he decides to discharge the jury, he may decide to proceed with the trial without a jury provided that he is satisfied it would be fair to the defendant to do so.
Further, the judge has the option of terminating the current trial and ordering that the retrial is to take place without a jury.
After the decision
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.
If there is an appeal, then the Court of Appeal may confirm or revoke the order.
The essence of judge-only 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 will have to give reasons for the conviction.