R v Twomey; R v Blake; R v Cameron; R v Hibberd
| Jurisdiction | England & Wales |
| Judgment Date | 20 January 2011 |
| Neutral Citation | [2009] EWCA Crim 1035,[2011] EWCA Crim 8 |
| Docket Number | Case No: 2009/01566,Case No: 2010/2436/D5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 January 2011 |
[2009] EWCA Crim 1035
Before: The Lord Chief Justice of England and Wales
Lord Justice Goldring and
Mr Justice Mccombe
Case No: 2009/01566
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
INTERLOCUTORY APPEAL
CALVERT-SMITH J
Mr S Russell-Flint QC, Mr T Cray and Miss K Wilkinson for the Crown
Mr J Aspinall QC and Mr A Eissa for T
Mr G. Wilson and Mr S Moses for B
Miss K Brimelow and Mr B Newton for C
Mr M Austin-Smith QC for H
Hearing date: 12 th May 2009
Approved Judgment
The Lord Chief Justice of England and Wales:
This is an interlocutory appeal against the ruling by Calvert-Smith J, brought with his leave, refusing the Crown's application for a trial on indictment to be conducted without a jury, in accordance with section 44 of the Criminal Justice Act 2003. The ruling was indicated during the course of a preparatory hearing on 11 March 2009. It was confirmed in a written �open judgment� handed down on 20 March. Notwithstanding the existence of a real and present danger that jury tampering would take place at a re-trial of the respondents, Calvert-Smith J was not sure that the likelihood that jury tampering would take place was so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.
The case concerns very serious criminal activity, including possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery, robbery and conspiracy to rob. Counts 1�5 of the 18 count indictment allege offences arising out of a carefully planned and professionally executed armed robbery which took place shortly before midnight on 6 February 2004 at warehouse premises at Heathrow Airport by robbers carrying firearms and wearing disguises. During the robbery a firearm was fired at a supervisor. The objective of the robbery was something in the region of �10 million in Sterling and mixed foreign currency. As a result of a misreading of a flight manifest, the proceeds amounted to �1.75 million, which are largely unrecovered. The remaining counts, involving one of the respondents on his own, and relating to firearms found in a lock up garage near to Heathrow Airport on 9 October 2002 are evidentially linked with the first 5 counts.
The trial process to date
In March 2005 a trial of one of the present respondents, T, and six other defendants who are not before us began. Within a few days T became unwell. The jury was discharged from returning a verdict against him. The remaining defendants were acquitted of conspiracy to rob, two of them were acquitted altogether, but the jury was unable to agree on a count of conspiracy to steal against four others. A re-trial of this count was ordered, but adjourned until the conclusion of the present proceedings.
In 2007, following the arrests on different occasions of two of the present respondents, B and H, and the partial recovery from illness of T, three respondents stood their trial at the Central Criminal Court before His Honour Judge Roberts QC and a jury. This trial lasted more than six months. By the time the judge came to sum up the jury had diminished to ten. After they had been in retirement for two days a note was sent to the trial judge which indicated that the jury had reached �on all defendants on all counts, a very strong majority decision�. As there was a Bank Holiday weekend ahead, the judge stated that he would not give a majority direction and take verdicts but, to assist the defence considering any submissions about the timing of such a direction, he indicated that the verdicts were likely to be adverse to them. Nine jurors returned to court after the Bank Holiday. A tenth juror said that he was under stress and refused to return to court. He was therefore discharged. With only nine jurors left, a majority verdict was no longer available and therefore the appropriate direction was not given. The jury was unable to reach unanimous verdicts. Pending a retrial the respondents were granted conditional bail.
By the time the re-trial was due to begin, the fourth respondent, C, had been arrested. The trial of the four respondents began on 30 June 2008. The trial judge, again, was Judge Roberts QC. The trial proceeded until December 2008. On 5 th December the prosecution informed the judge of evidence that approaches were being made to two members of the jury. On 8 December 2008 the judge indicated to the parties that he was minded to discharge the jury, and on 9 December 2008 he made the necessary order. Having discharged the jury he declined to make the further order that the trial should continue without a jury because he had seen a substantial volume of inadmissible but highly prejudicial material. He decided that he could not continue with the trial on his own without a jury and that it was necessary in the interests of justice to terminate it.
Judge Roberts then addressed the question whether he should order that any new trial should be conducted without a jury. The prosecution submitted that the appropriate course was for the application for a preparatory hearing for this purpose to be heard by a Presiding Judge of the South Eastern Circuit. It was submitted on behalf of the respondents that he was required to decide whether to make such an order. Judge Roberts agreed, and addressed the issue. In his open court ruling he indicated that he had no difficulty in finding that a serious attempt at jury tampering had taken place at the recent trial and that there was a real and present danger that it would happen again. Having received information about possible measures for the protection of a jury, Judge Roberts indicated that he was prepared to assume (without deciding) that the risk of jury tampering would be reduced below the level appropriate for an order for trial without jury by a series of steps which could be taken by the police to protect the jury. In the end, however, as the issues involved important matters of public policy he decided that these would be best considered by one of the Presiding Judges of the Circuit. He therefore declined to make the order sought by the prosecution and invited the Presiding Judge to take over the application and re-consider the matter afresh. However the way in which he dealt with these issues in his judgment was referred to by Calvert-Smith J later, and so we should recite the relevant passages:
�Of the two packages �. one is more intensive and therefore demanding of resources than the other. The more intensive option would involve a cost of about �6 million if the trial lasts, as expected, for six months. It will also require not less than 82 Metropolitan Police Officers to be detached from their normal duties for six months to participate in the exercise. The less intensive option would involve a cost of about �1.5 million if the trial lasts for six months. It would require not less than 32 Metropolitan Police Officers to be detached from their normal duties for six months to participate in the exercise.�
He went on to identify some of the ingredients of the less intensive package which he said would �include allowing the jurors to be referred to by numbers only, the court sitting in a courtroom where people in the public gallery cannot see the jurors, and withdrawing the defendants' bail for the duration of the trial�.
At a preparatory hearing on 11 March 2009 Calvert-Smith J considered material placed before him by the Crown ex parte on notice in chambers, and then received submissions from both sides in open court. In his written open court ruling Calvert-Smith J reached the following conclusions. The material placed before him ex parte by the Crown, in the public interest, be and should remain withheld from the respondents, notwithstanding that this inhibited their opportunity to make representations in relation to the Crown's application under section 44 of the 2003 Act. He was satisfied that there was evidence of a real and present danger that jury tampering would take place at the trial of the respondents, and that the risk would remain throughout the trial. That said, he concluded that a �package� of measures to provide jury protection would be sufficient to reduce the risk of jury tampering to an acceptable level. In other words, with the package of measures in place, the likelihood of jury tampering would not be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.
In his judgment Calvert-Smith J considered the reasonableness of the expense and man hours which would be needed in relation to a trial which he was informed might last nine months. He continued that he was �provided with figures similar but not identical to those recited� by Judge Roberts and concluded that the �less expensive package of measures would be sufficient to reduce the risk of tampering�. He referred to the detailed reasons for his conclusion which would be found in the closed ruling. It includes this passage, which can safely be included in this judgment ��as to the nature and cost of any such measures as would be put in place to safeguard a jury, there is obviously a clear public interest in not revealing the ambit of such measures, because it would simply increase the risk that anybody wishing to tamper with the jury would find a way round such measure. Beyond saying that of course the court has had well in mind on the authorities, in particular that of Mackle, such things as the reasonableness of the expenditure in a long trial of this kind and the effect on manpower of the police service responsible and so on, without revealing the exact details either of the measures or of the cost of them�. (As to Mackle see para 18 below)
We have examined not only the open court, but also the...
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