Sections 44 and 46 of the Criminal Justice Act 2003 provide for a trial on indictment to take place in England and Wales without a jury where there is a danger of jury tampering taking place or where it appears that such tampering has taken place.

In practice, the powers have only been used twice since enactment: once in a 2009 case involving a violent armed robbery and, last month, when a Crown Court judge discharged the jury and convicted three men in Leeds in relation to a “crash for cash” fraud scheme in which a woman was killed. It was reported that in the course of the two week trial in Leeds, a fire alarm had been deliberately activated and footage was recorded of members of the jury being approached as they left the court building and offered cash payments in return for a particular verdict.

Under section 44 of the 2003 Act, a trial can proceed without a jury where:

(4) … there is evidence of a real and present danger that jury tampering will take place.

(5) … notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

Under section 46, a judge can discharge a jury where it appears that jury tampering has taken place. He can then decide whether the trial should continue without a jury or should be terminated. The key consideration is one of fairness. The judge must be satisfied that to continue a trial without a jury would be fair to the defendant (section 46(3)).

Jury trials are a central tenet of the criminal justice system. They protect against tyranny by giving the responsibility for deciding the verdict in the most serious criminal cases to a group of people entirely disconnected from the court or the parties. They thereby preserve public confidence in the UK’s criminal justice process.

Commentators writing when this legislation was enacted were concerned that the power to hold judge-only trials might lead to inroads being made into the accused’s right to a trial by jury. These concerns remain. Whilst the limited use of the legislation to date does give hope that it will be a power exercised only in the rarest circumstances, it is necessary to guard against any temptation there may be to extend its use in the pursuit of cost savings or other efficiency.