Information Note on the Court’s case-law No. 163
May 2013
Twomey, Cameron and Guthrie v. the United Kingdom (dec.) - 67318/09 and 22226/12
Decision 28.5.2013 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Equality of arms
Impartial tribunal
Independent tribunal
Trial by judge sitting alone owing to risk of jury tampering: inadmissible
Facts – The case concerned the power under section 46 of the Criminal Justice Act 2003 for a judge in a trial on indictment to discharge the jury where jury tampering appears to have taken place. The provision also enables the judge to continue the trial alone if satisfied that tampering has in fact taken place and that continuing without a jury would be fair to the defendant.
The first and second applicants were convicted of robbery related charges by a judge sitting alone after the jury had been discharged by the original trial judge on the grounds that a “serious attempt at jury tampering” had taken place during the trial. The material on which the original trial judge relied in reaching that finding was not disclosed to the defence, but defence counsel were able to make representations on the proposal to discharge. The Court of Appeal subsequently ordered that the retrial should be conducted by a judge sitting alone without a jury in view of the very significant danger of jury tampering.
In unrelated proceedings, the third applicant was convicted of fraud with three co-defendants after the trial judge had discharged the jury following allegations of tampering and had decided to try the case alone. The material on which the allegations were made was not disclosed to the defence, but the defence received a gist statement outlining the nature of the allegations and were also given leave to lodge an interlocutory appeal against the judge’s decision. At the interlocutory appeal, the Court of Appeal upheld the trial judge’s ruling, observing that nothing considered by her under public-interest immunity principles should have been disclosed to the defence; that the gist statement accurately summarised the effect of the undisclosed material; and that there was nothing in the material to suggest that the trial judge should have disqualified herself from continuing with the trial.
In their applications to the European Court, all the applicants complained that the decision to proceed without a jury had been made on the basis of material which was not disclosed to them. The third applicant also complained, inter alia, of the risk of bias inherent in the decision of the trial judge in her case to continue without a jury after seeing the undisclosed evidence of jury tampering.
Law – Article 6 § 1: As regards the applicants’ complaint that the decision to proceed without a jury had been made on the basis of material which was not disclosed to them, it was important to note that the undisclosed material did not concern the applicants’ guilt or innocence, but the separate issue of whether there had been an attempt to contact members of the jury. The material had been relied on by the prosecution solely in relation to the procedural question whether the jury should be discharged and whether the trial should proceed before a judge sitting alone. When deciding whether adequate safeguards had been provided to the defence, the fact that what was at stake was the mode of trial rather than conviction or acquittal had to weigh heavily in the balance. In both cases, the defence had been given the opportunity to make representations as to whether or not the jury should be discharged and to make full submissions on the fairness of continuing without a jury. In the Court’s view, the procedure followed had afforded the defence sufficient safeguards, taking into account, on the one hand, the important public-interest grounds against disclosing the relevant evidence to the defence and, on the other, the fact that all that was to be determined was whether the trial should continue before a judge sitting alone or a judge sitting with a jury, two forms of trial which in principle were equally acceptable under Article 6. While the circumstances in which evidence relating to jury tampering could be withheld from the defence were not set out in the legislation, this had not caused unfairness to the defence since the categories of material covered by public-interest immunity were well established in common law.
The Court did not accept the third applicant’s argument that there was a risk of bias inherent in the trial judge’s decision to continue alone in her case. The trial judge had not seen any undisclosed material that was related to one of the elements of the offences charged and, as an experienced criminal judge, perfectly understood that a conviction could be entered only where the prosecution evidence met the standard of proof beyond reasonable doubt. The legislative provisions in question served the interests of justice, in that individuals accused of criminal offences should not be permitted to escape justice through any attempt to interfere with the jury. Whether, after discharge of the jury, the trial proceeded before the original judge or recommenced before a new judge, as had occurred in the case of the first and second applicants, that judge would know that there had been strong evidence of jury tampering at an earlier stage. Any prejudice thereby caused to the defence in either of the present applications was, in the Court’s view, negligible and, moreover, justified by the public interest at stake.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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