Tag Archives: Jury

Secret Trials – initial decision in AB & CD

The-Trial-Kafka-Franz-EB9787770620614

Introduction

There was a flurry of interest last week when reporting restrictions were lifted to reveal that there was an application for a whole trial trial to be held in secret. The issue had reached the Court of Appeal before a previous gagging order that prohibited the reporting of the gagging order was lifted.

The idea of a whole trial proceeding without the ability of members of the public to know anything about it, or potentially that it is even happening at all, is a novel one. This is the first time (that we know of) that this had been proposed since 1640. The Kings and Queens of old asserted (to sometimes strong opposition) the right to have trials in secret. This was settled, somewhat dramatically and adversely to him, on 27th January 1649.

Since then, whilst parts of a case has been held in camera (the case of Wang Yam is a good example of this) the principle of open justice has always meant that there has been some information in the public domain.

The trial is scheduled to start on 16th June 2014 and the Court of Appeal reserved judgment until the 12th June 2014.

 

Ruling

We have a transcript of what was handed down on 12th June 2014. That’s slightly more convoluted than saying ‘judgment'; because there is a curiosity straight off in para 1 : “Today, we give our Decision on the recent appeal of the media, accompanied by a brief overview. This is not our Judgment; our Judgments (plural, as will be explained presently) have been reserved and will be given in due course

The Court of Appeal allowed some, very limited, aspects of the trial to be held in public. These are:

  1. Swearing in of the jury.
  2. Reading the charges to the Jury.
  3. At least a part of the Judge’s introductory remarks to the Jury.
  4. At least a part of the Prosecution opening.
  5. The verdicts.
  6. If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe).

Frankly, this is not all that much. The important thing to see will be how much of the opening is public. This will tell us something at least. Of course it is often the case that the evidence as it comes out during trial is different to that contained in the Prosecution Opening.

We are also allowed to know their names – no longer AB and CD, but Erol Incedal and Mounir Rarmouc-Bouhadjar. As was recognised by the Court at para 21 “We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case.

Mr Incedal is charged with Possessing Bomb Making instructions and preparing acts of terrorism. Mr Rarmouc-Bouhadjar only with the first of those offences, but a separate offence under the Identity Documents Act.

The core finding is at para 14, the Court was “persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution“.

Importantly, a small number of journalists will be attending the trial in full (apart from some very sensitive parts). They will be allowed to keep notes but these will be kept by the Court at the end of each day, and at the end of the trial subject to any further order.

 

Why is it being held in secret?

Well, if we were to know that in detail it would defeat the purpose of the application …

 

Will the jury be vetted? Is that allowed?

Perhaps surprisingly, this is allowed. It is only in exceptional cases concerned with issues of national security, and requires the permission of the Attorney-General personally. The AG has issued guidance as to how this is conducted.

 

Conclusion

The idea of trials being in secret is a repellant one. Having said that, there will clearly be cases where a derogation from full openness is required. That is something that most people would agree on, it’s the question of where the line should be drawn that is the difficult one.

Here, without knowing more details (which may or may not be in the judgment), it is hard to say how necessary this is. But it will certainly cause debate.

 

Secret Trials – initial decision in AB & CD

The-Trial-Kafka-Franz-EB9787770620614

Introduction

There was a flurry of interest last week when reporting restrictions were lifted to reveal that there was an application for a whole trial trial to be held in secret. The issue had reached the Court of Appeal before a previous gagging order that prohibited the reporting of the gagging order was lifted.

The idea of a whole trial proceeding without the ability of members of the public to know anything about it, or potentially that it is even happening at all, is a novel one. This is the first time (that we know of) that this had been proposed since 1640. The Kings and Queens of old asserted (to sometimes strong opposition) the right to have trials in secret. This was settled, somewhat dramatically and adversely to him, on 27th January 1649.

Since then, whilst parts of a case has been held in camera (the case of Wang Yam is a good example of this) the principle of open justice has always meant that there has been some information in the public domain.

The trial is scheduled to start on 16th June 2014 and the Court of Appeal reserved judgment until the 12th June 2014.

 

Ruling

We have a transcript of what was handed down on 12th June 2014. That’s slightly more convoluted than saying ‘judgment'; because there is a curiosity straight off in para 1 : “Today, we give our Decision on the recent appeal of the media, accompanied by a brief overview. This is not our Judgment; our Judgments (plural, as will be explained presently) have been reserved and will be given in due course

The Court of Appeal allowed some, very limited, aspects of the trial to be held in public. These are:

  1. Swearing in of the jury.
  2. Reading the charges to the Jury.
  3. At least a part of the Judge’s introductory remarks to the Jury.
  4. At least a part of the Prosecution opening.
  5. The verdicts.
  6. If any convictions result, sentencing (subject to any further argument before the trial Judge as to the need for a confidential annexe).

Frankly, this is not all that much. The important thing to see will be how much of the opening is public. This will tell us something at least. Of course it is often the case that the evidence as it comes out during trial is different to that contained in the Prosecution Opening.

We are also allowed to know their names – no longer AB and CD, but Erol Incedal and Mounir Rarmouc-Bouhadjar. As was recognised by the Court at para 21 “We express grave concern as to the cumulative effects of (1) holding a criminal trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified. Suffice to say, we are not persuaded of any such justification in the present case.

Mr Incedal is charged with Possessing Bomb Making instructions and preparing acts of terrorism. Mr Rarmouc-Bouhadjar only with the first of those offences, but a separate offence under the Identity Documents Act.

The core finding is at para 14, the Court was “persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution“.

Importantly, a small number of journalists will be attending the trial in full (apart from some very sensitive parts). They will be allowed to keep notes but these will be kept by the Court at the end of each day, and at the end of the trial subject to any further order.

 

Why is it being held in secret?

Well, if we were to know that in detail it would defeat the purpose of the application …

 

Will the jury be vetted? Is that allowed?

Perhaps surprisingly, this is allowed. It is only in exceptional cases concerned with issues of national security, and requires the permission of the Attorney-General personally. The AG has issued guidance as to how this is conducted.

 

Conclusion

The idea of trials being in secret is a repellant one. Having said that, there will clearly be cases where a derogation from full openness is required. That is something that most people would agree on, it’s the question of where the line should be drawn that is the difficult one.

Here, without knowing more details (which may or may not be in the judgment), it is hard to say how necessary this is. But it will certainly cause debate.

 

Two jurors imprisoned for internet research/Facebook messages

On 23 July 2013, two men, Mr Davey and Mr Beard, were despite their protestations of innocence, found to have committed contempt of court. The transcript of that hearing is available here. On 29 July 2013, they were sentenced to two months’ immediate custody each for contempt of court.

The proceedings related to activity amounting to a real risk of interference with the administration of justice arising out of the two men’s activities whist serving as jurors in criminal trials. The two cases were unrelated save for these proceedings.

Mr Davey

Davey, aged 20 when summoned to serve on a jury, had a Facebook account with 400 friends.

On his arrival at court Mr Davey, like the other jurors, was shown the jury video. It included statements in the following terms:

“Please do not discuss the details of the trial with anyone other than your fellow jurors, not even your family.”

“Do not speak to anyone at all about the cases you hear.”

“Do not use social networking sites to post any aspects of your jury service.”

At the end of his first day at the Crown Court at Wood Green, he posted the following message to his Facebook profile:

“Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to Fuck up a paedophile & now I’m within the law!”

Mr Davey was discharged and the case continued with 11 jurors. The matter was then investigated by the police.

The Court found that this constituted a contempt of court.

Mr Beard

Beard was aged 29 when summoned for jury service at the Crown Court at Kingston upon Thames. He was selected to sit on a long trial expected to last about 2 months. About 5.5 weeks into the trial, the following (taken from the transcript) came to the Court’s attention:

There were various conversations going on [amongst the jury], and in the conversation to which [Mr Sewell, a juror] was a party a question was asked as to how many investor witnesses would be heard from. One of the other members of the jury, Mr Beard, stated that the number of investors affected was about 1,800, although Mr Sewell did not recall the precise number. Mr Sewell asked Mr Beard where that figure came from as he was concerned he had missed some evidence. Mr Beard then stated that he had done a search on the internet through Google using the name of the operation and he got the figure that way. Mr Sewell then said “No, No, No, No! Don’t tell me about that. You shouldn’t have done that. I don’t want to hear about it.”

The jury was discharged. The cost of the defence amounted to £119,712 and the prosecution costs had been between £190,000 and £200,000.

The Attorney-General

The Attorney said:

Jurors who use the internet to research a case undermine justice. It creates a risk that the defendant will be convicted or acquitted, not on the evidence, but on unchallenged and untested material discovered by the juror.

Equally, the case of Kasim Davey shows that jurors must follow the directions given to them by the trial judge not to discuss the case outside the jury room, including discussions and posts on the internet.

Sentence

Both were sentenced to 2 months’ immediate custody. A transcript of the sentence is thus far unavailable. We know that no orders for costs were made.

Comment

Many on Twitter were shocked by the imposition of immediate custodial sentence. The courts take threats to the administration of justice very seriously. This can be seen by the ‘usual’ sentence for perverting the course of justice (e.g. Chris Huhne), misconduct in public office (e.g. police officers accessing the PNC for criminal purposes), perjury (e.g. Lord Archer) and contempt of court (see HM Att-Gen v Dallas).

Some are of the view that a custodial sentence is wholly unsuitable and totally unnecessary in cases like this. They cite the fact that the offenders are neither violent nor sexual offenders, and neither are ‘dangerous’ so as to pose a threat to the public.

Critics of such a view is that offences against the administration of justice must be dealt with robustly; any sentence for such an offence which is perceived as soft could mark the collapse of the system all together. Without respect for the juror’s oath or affirmation, it could become worthless. For example, if the penalty for witness intimidation isn’t that great, on a cost/benefit analysis it may be worth the risk of being caught.

Mr Davey and Mr Beard will have approximately one month in which to ponder that issue. They probably won’t make the same mistake again.

Discharging the Pryce jury – Will Sweeney J’s decision prove costly?

Image courtesy of www.futurity.org

The first trial and the jury’s questions

On 5 February 2013, Vicky Pryce stood in the dock at Southwark Crown Court, charged with perverting the course of justice. Her ex-husband, Chris Huhne, had pleaded guilty on rearraignment the previous day to the same offence. As has been well documented in the press, both Hunhe and Pryce accepted that Pryce had ‘taken’ Huhne’s penalty points for a speeding offence; Pryce pleaded not guilty on the basis of marital coercion.

The trial ran into its third week and the jury were sent out to consider their verdict. After almost 14 hours, they returned with a list of questions – a somewhat unusual occurrence in itself – which caused much speculation and debate, not least about the reliability of the jury trial as we know it.

The questions included ‘Can you define what is reasonable doubt?’, ‘Does the defendant have an obligation to present a defence?’, and perhaps most worryingly, ‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?’.

Mr Justice Sweeney sent the jury home for the evening and discussed with counsel the answers that he would give. Andrew Edis QC, prosecuting, asked for the jury to be discharged on the basis that the questions indicated that it was “ultimately unlikely” that any verdict could be said to be a safe and proper one.

Edis said: “Overall the picture is not reassuring as to the extent to which this jury has truly understood its task at this now very advanced stage of their deliberations. It’s surprising they are still struggling with this very basic concept of jury trial.”

The following morning, Mr Justice Sweeney answered the jury’s questions; he referred to the 17-page written directions he had provided to the jury before they retired. He then said:

“If for any reason one or more of you feel less than confident that you understand and are able to apply my directions of law, then it would be wholly wrong for any juror in that position to reach a verdict one way or the other.”

If after further consideration you find yourselves in a position that you are simply not able to agree, no matter how much longer you continue to debate and that’s going to remain the position then you must, of course , have the courage to say so by your foreman sending me a note to that effect.”

The jury subsequently (after more than 15 hours considering their verdict) passed a note to the Judge stating that it was “highly unlikely” that they would reach a majority verdict (the majority direction being given some hours earlier).

Undoubtedly, some of the questions showed a lack of understanding. I happen to think that is not necessarily a problem and support the view that David Allen Green proffers in The Observer; the jury should be commended for daring to ask questions. However, as I said to David on Twitter, I would prefer a jury who listened attentively in the first place; as Sweeney J stated, all of the questions were answered in his written directions.

Discharging the jury

In response to the jury’s note indicating that they were unable to reach a verdict, Mr Justice Sweeney said:

“I have received your note which indicates that it is ‘highly unlikely’ that you are going to reach even a majority verdict. I am grateful for that.

“Against the background of the length of time that you have been in retirement already, I have decided therefore, and it is my decision one way or the other, that I must discharge you from any further deliberations.

“That means that your role in this case is now over.”

After the jury had left court, Mr Justice Sweeney said,

“In 30 years of criminal trials I have never come across this at this stage, never.” and stated that the jury had shown a “fundamental deficit in understanding” of its role.

The prosecution quickly indicated it’s intention to seek a re-trial.

Despite Sweeney J’s decision, there was a feeling that his comments (when answering the jury’s questions) relating to the jury being unable to reach a verdict and having the ‘courage’ to indicate so were a thinly veiled encouragement to do so. This was reinforced by his comments (recited above in part) to the effect that the jury had not grasped the fundamentals of their role – a concern for any judge, defence or prosecution advocate.

A re-trial

Where a jury cannot agree on a verdict, the prosecution are entitled to seek a re-trial. In fact there is a presumption that they will do so.

CPS Guidance suggests that the following will be considered when determining whether a re-trial is sought:

a) The merits of the case (realistic prospect of conviction, availability of witnesses etc.)

b) Likely reasons for the jury’s failure to reach a verdict (was the failure ‘perverse’?)

c) The public interest in seeking a verdict (seriousness of the offence, likely sentence if convicted, consequences of not proceeding etc.)

d) Interest/views of the victim (obviously not relevant here)

e) Views of trial judge, prosecuting counsel and the police

What is the situation if a second jury cannot agree on a verdict in Vicky Pryce’s case?

A second re-trial?

It is common practice that the prosecution offer no evidence against a defendant where two juries have failed to reach a verdict…but no more than a convention, Bowe v R 2001 6 Archbold News 3 per Lord Bingham.

His Lordship continued to state that whether a second re-trial would be oppressive and unjust depends on a dispassionate assessment of how the interests of justice are best served. He also stated that ‘full account must be taken of the defendant’s interests’.

In R v Bell 2010 EWCA Crim 3, the court, led by the Lord Chief Justice, said that a second retrial should only be sought in a small number of cases involving a crime of extreme gravity which had undoubtedly occurred and in which the evidence that the defendant committed it on any fair minded objective judgement remained powerful.

CPS Guidance reflects the authorities listed above and lists examples of witness interference and additional evidence not available at earlier trials as exceptional circumstances.

Repercussions?

Returning to Pryce, whilst it may be possible to argue that there are exceptional circumstances, it is hardly an easy case to make and it may be that the prosecution decide it is an inappropriate course to take.

With that in mind, was it an error of judgement to discharge the jury for failing to reach a verdict as opposed to acceding to Andrew Edis QC’s submission that as the questions posed by the jury showed a fundamental misunderstanding of the role and function of a jury, no verdict could be said to be a proper one?

Time will tell.