Solicitors need to start thinking about the practical consequences of Twomey for non-jury trials, explains Seth Levine

Mr Justice Treacy has now delivered his verdicts in the case of Twomey and others, the first non-jury trial in respect of an indictable-only offence in England and Wales in more than 350 years. The trial, ordered by the Court of Appeal pursuant to section 44 of the Criminal Justice Act (CJA) 2003, has attracted a level of interest from the mainstream media ordinarily reserved for the most salacious of crimes. Unusually, the focus has been on the mechanics of the trial process, suggesting that trial by jury retains a unique place in the national consciousness.

The reasons for this are not hard to ascertain. It does not take a constitutional lawyer to understand that juries represent a bulwark between the state, its agents and its citizens. Juries, drawn from the local community, are more likely to represent the diversity of those who appear in the dock than is the case among the high-ranking judiciary. Nor are juries ‘case-hardened’ in the way that a professional judge may become.

However, successive administrations have sought to make inroads into the right to trial by jury. Jury trials are expensive and often result in acquittals. Neither of these facts is electorally advantageous, and neither of the two main political parties has been immune to the lure of reform when in power. Since 1997, Labour has made several legislative attempts to restrict jury trials, including two largely forgotten attempts to withdraw the right to elect jury trial in eitherway matters (Criminal Justice (Mode of Trial) Bill and Criminal Justice (Mode of Trial) Bill (No.2) 2000).

It seems likely that Twomey will serve as a precedent for non-jury trials in serious criminal cases, and may well presage further legislative incursions. Practitioners need to start thinking about the practical consequences.

There is no statutory requirement that all defendants jointly charged are proven or alleged to be involved in jury tampering before section 44 may be invoked. The test is twofold: first, there must be evidence of a ‘clear and present’ danger of jury tampering; and second, the likelihood of tampering must, notwithstanding any preventative steps which might reasonably be taken, be so substantial as to make trial without a jury necessary in the interests of justice. From whom that threat emanates is not, it seems, a necessary consideration.

That fact is compounded by the way in which the decision-making process in Twomey was undertaken. The evidence of jury tampering was subject to public interest immunity (PII), and as such none of the defendants were aware of its nature or content, nor able to directly challenge its veracity.

Those twin features could amount to this: a defendant against whom no jury tampering was alleged, on the basis of evidence kept from him, may have his right to a trial by jury denied. It is readily apparent that this has fundamental repercussions for the ‘right’ to trial by jury. If those seeking to erode the primacy of juries needed to establish a beachhead, this looks very much like it.

Uncharted territoryAnd what of the consequences for defendants denied a jury trial? As well as being denied the advantages afforded by a jury trial already noted, they face specific legal difficulties. Parliament’s failure to provide any rules of adapted procedure for non-jury trials leaves litigators, advocates and judges having to negotiate uncharted territory.

Trials of the gravity and complexity of Twomey, precisely the type of cases that are likely to attract applications for non-jury trial, push the notion of judicial ‘compartmentalisation’ to breaking point. The judge, as the tribunal of law, must deal with questions of disclosure, PII and admissibility, encompassing everything from witnesses in fear to ‘supergrass’ evidence. They must rule on everything from bad character applications to applications to exclude evidence. In the judge’s trial management capacity, they must deal with absent defendants and the consequent remand implications, all the while not allowing their role as tribunal of fact to be affected. Some of these concerns could, perhaps, have been obviated by the introduction of adapted procedures. A ‘shadow judge’, for example, who sits through the evidence with the trial judge, but may hear sensitive applications alone, may have addressed some of the concerns about compartmentalisation. Parliament, having provided the mechanism for non-jury trials, neglected to provide the tools.

As an empirical study of Diplock courts unsurprisingly found, judge-only trials see a far greater number of judicial interventions during evidence, reflecting the case-hardened experience of the tribunal of fact. In short, section 44 has ushered in the dawn of hybrid trials – essentially adversarial in form, but increasingly inquisitorial in nature.

Section 44 of the CJA 2003 may be the first provision to be utilised to enable a non-jury trial, but it will not be the last. Section 43 of the same legislation, while not yet in force, is lurking in the wings. Providing for judge-only trials in cases of long and complex fraud trials, the effective use of section 44 will inevitably be deployed in support of section 43. It may also lead to the increased use of section 17 of the Domestic Violence, Crime and Victims Act 2004, which allows for some, but not all, counts on an indictment to be tried without a jury.

Politically, it made sense to begin the non-jury experiment with section 44. Even the staunchest supporter of the jury system would have difficulty arguing with the proposition that a person engaged in jury tampering potentially forfeits the right to a jury trial. Yet the knock-on effects of that uncontentious starting point are thrown into sharp relief by Twomey. It is instructive how a seemingly sound policy, based on protecting the integrity of the trial process, morphs into a consideration of cost. That cost is an active consideration in the assault on trial by jury is beyond doubt. Lord chief justice Lord Judge, in his ruling in the Court of Appeal in Twomey, found that the risk of jury interference could not be nullified by police protection, but observed that ‘even if it did deal with the dangers posed to the integrity of trial by jury, it would be unreasonable to impose that package with its drain on financial resources and police manpower on the police’.

The jury system has withstood the forces raged against it for 350 years. With the decision in Twomey, the dam has finally cracked. It remains to be seen whether what follows will be a trickle or a torrent. Mr Justice Treacy’s judgment, and any subsequent challenge to it, will need to be studied with care, for a lot more than the fate of the men being tried turns on the outcome.

Seth Levine is a barrister at Dyers Chambers, the chambers of Andrew Campbell-Tiech QC