Part 7 : Trials on Indictment Without a Jury
247.This Part of the Act sets out the circumstances in which a trial on indictment in the Crown Court must, or may, be heard by a judge sitting alone without a jury.
Section 43: Application by prosecution for certain fraud trials to be conducted without a jury
248.Section 43 makes provision for the prosecution to apply for a serious or complex fraud trial on indictment in the Crown Court to proceed in the absence of a jury. The court would need to be satisfied that the length or complexity (or both) of the trial is likely to make it so burdensome upon the jury that the interests of justice require serious consideration to be given to conducting the trial without a jury (subsection (5)). Where the court is so satisfied, it has a discretion to order that the trial should be conducted without a jury, but such an order requires the approval of the Lord Chief Justice or a judge nominated by him (subsection (4)).
249.Subsections (6) and (7) require the judge to consider whether there is anything that can reasonably be done to make the trial less complex and lengthy. Particularly relevant in this context will be the provision made for the preparatory hearing procedure under section 7 of the Criminal Justice Act 1987 or section 29 of the Criminal Procedure and Investigations Act 1996. However, in so doing the court is not to regard as reasonable any measures which would significantly disadvantage the prosecution. For example, the prosecution may be disadvantaged by the severing of an indictment or by the exclusion of relevant and important evidence simply on jury management grounds.
250.Commencement of section 43 is by affirmative resolution procedure (see section 330(5)).
Sections 44 and 46: Application for prosecution for trial to be conducted without a jury where danger of jury tampering; discharge of jury because of jury tampering
251.Sections 44 and 46 provide for a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering, or continued without a jury where the jury has been discharged because of jury tampering.
252.The power of a judge to discharge a jury on the grounds of jury tampering exists at common law. The phrase “jury tampering” is intended to be understood from that context as covering a range of circumstances in which the jury’s independence is, may be or may appear to be compromised, for example, because of actual or attempted harm or threats to, or intimidation or bribery of, a jury or any of its members. It could also include improper approaches to a juror’s family or friends, or threats etc in respect of a juror’s property.
253.Section 44 allows the prosecution to make an application for a juryless trial. For this to be granted, the court must be satisfied that there is evidence of a real and present danger that jury tampering would take place (subsection (4)); this echoes the test in considering whether police protection should be ordered in respect of a jury. In addition, the court must be satisfied that the danger of jury tampering is so substantial, notwithstanding any steps (including police protection) that could reasonably be taken to prevent it, as to make it necessary in the interests of justice for the trial to be conducted without a jury.
254.Subsection (6) sets out examples of what might constitute evidence of a real and present danger of jury tampering.
255.Section 46 concerns trials already under way where jury tampering has, or appears to have, occurred. In these circumstances, if the judge is minded to discharge the jury (in exercise of his common law powers) he must notify the prosecution and defence that he is so minded, explain his reasons for doing so, and hear what each party has to say on the matter (subsection (2)). If the judge then decides to discharge the jury (in the exercise of his common law powers) and is satisfied that tampering has occurred, he may order that the trial should continue without a jury if he is satisfied that this would be fair to the defendant (subsection (3)). Subsection (4) provides that where the judge considers it necessary in the interests of justice to terminate the trial, he must terminate it. In that event, he may order a retrial, and if he does so, he will have the option of ordering that the retrial should take place without a jury (subsection (5)). However, if he is to order the retrial is to take place without a jury, he will need to have satisfied himself that both the conditions in section 44 are likely to be met in respect of the retrial.
Section 45: Procedure for applications under sections 43 and 44.
256.This section prescribes the procedure for determining applications for a trial to be conducted without a jury under section 43 (serious or complex fraud trials) and 44 (danger of jury tampering); this provision is likely to be supplemented by rules of court.
257.Subsection (2) makes clear that any such application will be determined at a preparatory hearing. Provisions governing preparatory hearings are contained in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. Section 45 builds on and amends these provisions to allow for applications for non-jury trial to be considered either at a preparatory hearing ordered under the existing provisions of those Acts, or at a preparatory hearing ordered particularly for that purpose.
258.The effect of subsections (5) and (9) is that an appeal will lie to the Court of Appeal for both prosecution and defendant against the determination made by the court at a preparatory hearing on any application for a trial without a jury under section 43 or 44.
Section 47: Appeals
259.This section provides a right of appeal to the Court of Appeal against:
an order made under section 46(3) to continue a trial in the absence of a jury and
an order made under section 46(5) for a retrial to be conducted in the absence of a jury
following the discharge of a jury because of jury tampering.
Section 48: Further provision about trials without a jury
260.These provisions ensure that, where a court orders a trial to be conducted (under sections 43, 44 or 46(5)) or continued (under section 46(3)) without a jury, the trial will proceed in the usual way, except that the functions which would otherwise have been performed by a jury can be fully performed by the judge sitting alone, with suitable allowance for the obvious requirements of the change of context.
261.Where a trial is conducted or continued without a jury, and a defendant is convicted, subsection (5)(a) requires the court to give its reasons for the conviction.
262.Subsection (6) provides that the functions of a jury in determining fitness to plead are unchanged.
Section 49: Rules of court
263.Section 49 makes provision for the making of rules of court.
Section 50: Application of Part 7 to Northern Ireland
264.Section 50 provides that Part 7 applies in Northern Ireland subject to the modifications made by this section. Subsection (2) provides that Part 7 does not apply to a trial to which section 75 of the Terrorism Act 2000 applies.
