Commentary on Sections Part 7 : Trials on Indictment Without a Jury 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.