Sentencing - Discharge of jury - Disclosure - Jury tampering

R v (1) John Twomey (2) Peter Blake (3) Barry Hibberd (4) Glen Cameron: CA (Crim Div) (Lord Chief Justice Lord Judge, Mr Justice Rafferty, Mr Justice Roderick Evans): 20 January 2011

The appellants (X) appealed against their convictions (R v B) for robbery and other related offences arising out of an armed raid.

The jury had been discharged because of jury tampering and the case had been tried by judge alone. The principal issues on appeal were: (i) whether the order for trial by judge alone had been vitiated by the decision in Secretary of State for the Home Department v F [2009] UKHL 28, [2010] 2 AC 269; (ii) whether the examination of evidence under public interest immunity conditions had created a bias on the part of the judge; and (iii) whether the material relating to jury tampering should have been disclosed to those of X against whom jury tampering had not been proved, to enable them to advance their submissions in support of severance of the trial.

Held: (1) The ‘right’ engaged in the instant appeal was confined to the mode of trial, not its fairness. The case of F was not directed to, nor was it intended to impact on, pre-trial criminal processes concerned with the mode of trial, otherwise a defendant would continue to be entitled to trial by jury even where the court was satisfied that there was a real and present and unavoidable danger of jury tampering. That would produce an unfair trial and emasculate provisions designed to avoid jury tampering, F not applied (see paragraphs 32, 43-44 of judgment). The principles identified in R v H [2004] UKHL 3, [2004] 2 AC 134 continued to apply, R v H and R v Comerford (Thomas Anthony) [1998] 1 WLR 191 CA (Crim Div) applied (paragraphs 42,45).

(2) The judge had examined the public interest immunity material without the assistance of special counsel or a disclosure judge. That had been the sensible course. Upon examination of every piece of material seen by the judge, it was clear that none of the material relating to jury tampering had been relied upon by the Crown against X, and none of that material had been shown to the judge in the course of the public interest immunity application or hearing (paragraphs 51, 54).

(3) It was inconceivable that X should have been tried separately, some by a judge alone and some by a judge and jury. Severance would have involved disclosure of material to which it had already been decided X should be excluded, and would also have involved the judge looking at material potentially prejudicial to them. Also, jury tampering findings were not always possible to attribute to an individual defendant. The legislative principles relating to severance were unaffected by there being multiple defendants, since trial by judge alone was directed to the trial process, not to the individual defendants (paragraphs 56-57).

(4) The appeals against sentence from some of X were dismissed.

Appeals dismissed.

John Aspinall QC, S Nereshraaj for the appellant Twomey; G Wilson, S Moses for the appellant Blake; S Stein QC, E Goodall for the appellant Hibberd; K Brimelow, D Rhodes for the appellant Cameron; S Russell Flint QC, T Cray for the Crown.