When can a criminal trial proceed without a jury under section 46 CJA 2003?

In the interlocutory appeal decision in Mohammad v Islaam [2024] EWCA Crim 34, the Court of Appeal upheld the decision of HHJ Andrew Smith KC in a Crown Court trial to discharge the jury and proceed without one. This article considers the decision and its implications for practitioners.

The facts

At first instance, the appellants in this case had been charged with nine counts of fraud, together with their co-defendants who did not appeal, and one defendant acting as a respondent. Following what had become a nine week trial at Birmingham Crown Court, the jury retired to consider their verdicts.

Three days after retiring, a note was sent by the jury to HHJ Smith KC disclosing that a juror had been approached to influence the jury’s decision during deliberation. An investigation by the judge ascertained that the same juror had been approached twice on two consecutive days by separate individuals during the trial. The advances appeared to directly implicate a single defendant. The juror who was approached did not initially disclose the matter to their fellow jurors, and there was a further delay of at least two days in the other jurors informing the judge.

The judge was careful to follow the practice direction as to the steps required in the event of suspected jury interference. They concluded that:

• as a result of the tampering, the approached juror had to be discharged, and;
• a fair-minded and informed observer would conclude that there was a real possibility of bias in response to the advances which would render any convictions unsafe, and accordingly the whole jury had to be discharged.

The judge then considered whether the trial should continue without a jury, further holding that:

• pursuant to s. 46 Criminal Justice Act (‘CJA’) 2003, and taking into account the interests of justice, the trial should continue without a jury under him.

The judge made an order to that effect under s. 46(3) CJA 2003. Having considered the authorities, he then gave leave to the appellants to appeal the order to the Court of Appeal under s. 47(2), on the basis that trial judges in similar situations had invariably granted leave.

The appellants’ submissions

At the Court of Appeal, the appellants’ submissions centred on alleged procedural unfairness, alleged substantive unfairness, and the interests of justice. Under the former head, it was argued that procedural unfairness had occurred as a result of the judge’s failures to:

• invite submissions from the parties on the prospect of trial by judge alone when considering the discharge question, and;
• make specific reference to that possibility.

On alleged substantive unfairness, the appellants submitted firstly that the right to a fair hearing by an independent tribunal encompassed a trial by jury, and that it was unfair to continue the trial without a jury, given the very late stage at which the jury tampering had been discovered. Secondly, had they known that the case would be tried by the judge alone, they would have adopted a different strategy at trial. Thirdly, the judge’s focus prior to discharging the jury had been on trial management, not on witness demeanour and weighing the evidence. Lastly, the court should not ‘reward’ jury tampering by refusing the appeal.

The Court of Appeal’s decision

The Court unanimously dismissed the appeal. Per Lady Carr LCJ, the Court had previously held in Twomey [2009] EWCA Crim 1035 that the right to a jury trial could be amended or circumscribed by legislation, as had been done in the CJA 2003.

The conditions for trial without a jury are set out in s. 46 of the Act. Summarising the relevant principles, the Court approved the obiter comment in Twomey that, where those conditions were satisfied and jury tampering had occurred, the normal approach was for a trial to continue without a jury.

General assertions of unfairness were unlikely to be persuasive. Instead, the court had to focus on specific instances of potential unfairness in the case.

There was nothing in s. 46 to suggest that the question of trial without a jury had to be addressed prior to or during the question of discharging the jury. Indeed, because they engaged different considerations, they were best considered separately. Although the judge may not have referred in terms to s. 46, the repeated references to Part 8.7 of the Criminal Practice Directions meant that the possibility of continuing without a jury was obvious. No procedural unfairness arose.

On substantive unfairness, it was immaterial whether or not the appellants were themselves responsible for the jury tampering. The 2003 Act merely required proof of tampering. The purpose of the provisions being to protect the jury’s integrity, it was inappropriate for the courts to read in qualifications to s. 46. The judge was well-placed to determine his own ability to try the issues fairly. Section 46 plainly set out that the judge must take over the trial if they determined it should continue without a jury, no matter how far along proceedings were. Further, the denial of alternative potential defence strategies did not give rise to unfairness, since the judge would be deciding the exact same issues on the same evidence as the jury.

Practical implications

The Court’s summary of the relevant case law and principles with regards to the application of s. 46 (at [31]–[36]) should be the first port of call for criminal practitioners dealing with issues of jury tampering. More broadly, it should now be clear that, where such issues arise, the possibility of continuing the trial without a jury will also arise by implication, even if it is not (explicitly) raised by the judge themselves when considering the need to discharge the jury.

Of greater practical importance is the Court’s engagement with the s. 47(2) leave to appeal mechanism. It will be recalled that HHJ Smith KC granted leave to appeal as this had been the practice in the earlier (few and rare) s. 46 cases. Disapproving of this, the Court held that the right of appeal against a s. 46 order was not an automatic one. A body of case law on the application of the provisions now existed. Consequently, applications under s. 47 should be treated as any other application for leave to appeal, i.e., leave should only be granted where there is a real prospect of success.

7BR’s Luke Blackburn prosecuted the case, leading Andrew Price of Drystone Chambers.

Article written by Luke Blackburn, Andrew Price and Kian Leong Tan.

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