Commentary on Sections Part 2: Criminal Justice Section 17: Application by prosecution for certain counts to be tried without a jury
70.This section makes provision for the prosecution to apply for part of a trial on indictment in the Crown Court to proceed in the absence of a jury. A successful application would need to satisfy the Court of three conditions.
71.The first condition is that there are so many counts in the indictment that a trial by jury involving all of those counts would be impracticable (subsection (3)).
72.The second condition (subsection (4)) is that the court considers that those counts which would be able to be tried with a jury can be regarded as samples of other counts in the indictment, which could accordingly be tried without a jury. For this purpose, a count may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person (subsection (9)).
73.The third condition is that it is in the interests of justice for part of the trial to proceed in the absence of a jury (subsection (5)).
74.In deciding whether to make an order for part of the trial to proceed in the absence of a jury, the judge will also be required to consider whether there is anything that could reasonably be done to facilitate a jury trial of all of the counts. However, in doing so the judge is not to regard as reasonable any measure which might lead to the possibility of a defendant in the trial receiving a lesser sentence than would be the case if that step were not taken.