TWOMEY, CAMERON AND GUTHRIE v. THE UNITED KINGDOM
Inadmissible
David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
The first and second applicants, Mr John Anthony Twomey and Mr Glenn Macdonald Cameron, are an Irish and a British national, who were born in 1948 and 1959 respectively. They were represented before the Court by Mr G. Bromelow, a lawyer practising in London. The third applicant, Ms Bianca Guthrie, is a British national, who was born in 1975 and lives in London. She is represented before the Court by Mr J. Edwards of Westgate Chambers and Mr S. Genen of Criminal Defence Solicitors, lawyers practising in Lewes and London respectively. 1. On 6 February 2004 an armed robbery occurred at a warehouse near Heathrow Airport. In March 2005 the trial began before Judge R, sitting with a jury, of Mr Twomey and six other defendants charged with offences related to the robbery. In the course of the trial, an application by counsel for one of the other defendants required the judge to investigate a substantial volume of material under public interest immunity conditions; that is, in a closed hearing without disclosure of the contents of the documents to the defence. The judge decided that the material was inadmissible as evidence and indicated that some was highly prejudicial to the first applicant. Subsequently, the first applicant became ill and the jury was discharged from returning a verdict against him. At the end of the trial two of the remaining defendants were acquitted altogether, but the jury was unable to agree on a verdict in relation to the other four and a re-trial was ordered. 2. The first re-trial began against Mr Twomey and two others in June 2007, again before Judge R and a jury. This trial lasted over six months. By the date of the summing up the jury had been reduced to ten members. After a retirement lasting two days, the trial judge was notified by the jury that they had reached “on all defendants on all counts, a very strong majority decision”. The judge said that he would not accept a majority verdict at that stage. However he added that to assist the defence considering what submissions should be made about the timing of the majority direction, he would indicate that the verdicts were likely to be adverse to them. Nine jurors returned to court after the weekend, but the tenth juror refused to return to court and was discharged. The jury was unable to reach unanimous verdicts. With only nine jurors, a majority verdict could not be taken. A second re-trial was ordered. 3. Meanwhile, Mr Cameron was arrested and indicted to stand trial with Mr Twomey and the other defendants. The second re-trial began on 30 June 2008, again before Judge R and a jury. On 5 December 2008, under closed conditions, the prosecution informed the judge that they were in possession of material which showed that improper approaches were being made to two members of the jury. This material was not disclosed to the defence. On 8 December 2008 the judge informed the parties that he was minded to discharge the jury because of alleged jury tampering. The amount of information which he could give about the allegations was, as he put it in his open judgment, “necessarily limited”. He considered representations from the defence, but concluded that no alternative to the discharge of the jury was available. Accordingly on 9 December 2008 the jury was discharged. 4. Judge R then reflected whether he should make an order under section 46(3) of the Criminal Justice Act 2003 (“the 2003 Act”: see paragraph 23 below), that the trial should continue before him sitting alone without a jury. He addressed a complaint made on behalf of the defendants that they were not being allowed to see the material on which his conclusion that jury tampering had taken place at the aborted trial was based, which prevented them from addressing the question whether a “real and present” danger of jury tampering existed. Judge R expressed sympathy with this submission, but said in express terms that “the law does not permit me to disclose the detail of the information upon which I acted in discharging the jury”. He repeated his entire satisfaction that a determined attempt had been made at jury tampering and added that even if the defence counsel had been allowed to see the material, there was no prospect that any consequent submissions could have altered his conclusion. Next, he reminded himself of the undisclosed material relating to the first applicant which he had seen in the course of the 2005 trial. He concluded that his knowledge of that material would make it unfair for him to return a verdict on the first applicant, and that this would have a “knock-on effect” on the other defendants, whose cases were inextricably linked to his. He considered that a “serious attempt at jury tampering” had taken place during the trial, and that there was “clearly a real and present danger” of the same thing happening again. He decided that the question whether the next re-trial should be by judge and jury or by judge alone should be considered by the President of the Circuit, the High Court Judge C. 5. In a closed session, with the assistance of counsel for the Crown, Judge C examined the undisclosed material concerning the allegations of jury tampering which had originally been put before Judge R. He invited submissions in open court from defence counsel. He also examined the open and closed court judgments and heard evidence from police officers about possible jury protection. Judge C noted that the problems caused to the defence by the lack of disclosure. However, he concluded that the public interest demanded that it remain confidential. He indicated that cases in which this course might be appropriate would be likely to be cases where the danger of jury tampering was at its “most extreme”. He added that if he were to conclude that the defendants should be informed of the matters of which they were ignorant then, notwithstanding the public interest that demanded that the information should be withheld, the entire object of the provisions intended to address jury tampering would be defeated. Judge C agreed with Judge R that there was a real and present danger that a future jury would be tampered with, and that the danger would persist from the moment when any new trial before a jury started until its conclusion. Nonetheless he considered that sufficient police protection could be provided, thus making it possible to conduct the re-trial with a jury. 6. The prosecution appealed to the Court of Appeal. On 5 June 2009, in accordance with the provisions of sections 44-48 of the 2003 Act, the Court of Appeal ordered that the third re-trial should be conducted by a judge alone without a jury (R v. Twomey and Others [2009] EWCA Crim 1035). It confirmed the conclusions of Judges R and C that the evidence established to the criminal standard that there was a real and present danger to the integrity of a future jury trial and that the danger of jury tampering and subversion of the process of trial by jury was very significant. They considered that the protective measures envisaged by Judge C would be inadequate in the circumstances to obviate these risks and that, in any event, the consequent impact on individual jurors of such a package of security measures would be unfair. 7. Judge T was appointed to act as the trial judge and to conduct the trial on his own. None of the material relating to jury tampering was relied on by the prosecution, and Judge T made it clear that he would not examine it, although as trial judge he remained under a continuing obligation to review whether it was fair not to disclose any other public interest immunity material which related to the issues at trial, on the ground that it would assist the defence or undermine the case for the prosecution. On 31 March 2010 he gave judgment convicting both applicants and two others of robbery, possessing firearms and other linked offences. The first applicant was sentenced to 20 years’ and six months’ imprisonment and the second applicant was sentenced to 15 years’. 8. Between 9 and 11 November 2010 the Court of Appeal heard the applicants’ appeal against conviction and sentence (R v Twomey and others (No 2) [2011] EWCA Crim 8). The main issue canvassed in the appeal was the fairness of the process by which the decision was made to conduct the retrial without a jury, and in particular the use of undisclosed evidence in that process. In its judgment dated 20 January 2011, the Court of Appeal dismissed the appeal. The Lord Chief Justice commenced the judgment with the following observations: “4. This remains the only case in this jurisdiction where trial on indictment by judge alone has taken place to nullify the risk of ‘jury tampering’ or jury nobbling. For the time being, although the statutory provisions relating to trial on indictment by judge alone have been in force for some years, this case is unique, and we must hope that it will remain so. The proper operation of the criminal justice system requires that the verdicts returned by a jury, as with any other court, must be true verdicts in accordance with the evidence. Verdicts returned by a jury which has been nobbled cannot represent true verdicts. If criminals choose to subvert or attempt to subvert the process of trial by jury they have no justified complaint if they are deprived of it. That is the consequence they face. The certain way of avoiding trials by judge alone where trial by jury would otherwise be available is for jury tampering to stop: it is as stark and simple as that. 5. Notwithstanding that trial by jury has been forfeited, the requirement that trial by judge alone should be fair is undiminished. All that has changed is the constitution of the tribunal. There is nothing in the common law, or in any of the provisions of the European Convention of Human Rights which suggests that trial by judge alone must, of itself, be deemed to be unfair, or that where an order for trial by judge alone is made, the subsequent trial offends the principle that every defendant facing any criminal charge is entitled to a fair trial. And it has not been suggested in argument that an order for trial by judge alone is or should be deemed to be an unfair trial. The fairness of any trial by judge alone is, of course, subject to review in this court, and if on examination it appears that the trial judge had acted unfairly, or in breach of the ordinary rules which govern judicial conduct, this court would have no hesitation in quashing any subsequent conviction. As it is, as we emphasise, no suggestion of unfairness has been directed at [Judge T’s] conduct of this trial, and indeed the verdicts were returned after a trial which was conducted with conspicuous fairness.” The Lord Chief Justice commented as follows on the choices faced by a trial judge following a decision to discharge a jury mid-trial: “21. ... The judge is then faced with two alternatives, either to continue with the trial or to terminate it. As we have narrated, in this case [the trial judge] brought the trial to an end. We understand his reasons, and what follows is not intended to be seen as criticism of the decision. However, given that one of the purposes of this legislation is to discourage jury tampering, and given also the huge inconvenience and expense for everyone involved in a re-trial, and simultaneously to reduce any possible disadvantage accruing to those who are responsible for jury tampering or for whose perceived benefit it has been arranged by others, and to ensure that trials should proceed to verdict rather than end abruptly in the discharge of the jury, save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial. The fact that he has been invited to consider material covered by [public interest immunity] principles, whether during the trial, or in the course of considering the application, should not normally lead to self-qualification.” He continued by considering the impact of the judgment of the House of Lords in Secretary of State for the Home Department v. AF and others (No. 3) [2009] UKHL 28, which concerned non-derogating control orders under the Prevention of Terrorism Act 2005, involving significant restrictions on liberty. The House of Lords decided that it was inconsistent with the right to a fair hearing under Article 6 of the Convention to make a control order on the basis of material which was undisclosed to the subject and his advisers and which could not, therefore, effectively be challenged by them. In the present case, the Court of Appeal rejected the applicants’ argument that it followed from the judgment in AF (No. 3) that they were entitled to disclosure of the evidence which had formed the basis for the decision to proceed to retrial without a jury, for the following reasons: “32. Attractively advanced as it was, this submission failed to grapple with the reality that the question whether the trial of the defendants should proceed as a trial by judge and jury or trial by judge alone was concerned exclusively with the mode of trial. It was not itself a criminal proceeding in the sense that the exercise of the jurisdiction to order a trial on indictment by judge alone might create or have the potential to create adverse consequences of the kind involved in control orders. No restriction on any individual defendant’s liberty, nor any other form of punishment, nor any sanction could follow from an order for trial by judge alone. Equally the order did not and could not constitute any form of interference with his property rights. The ‘right’ engaged in the present appeal is confined to the mode of trial, not its fairness.” 9. Once the decision of the Court of Appeal was known, the first applicant asked the Court of Appeal to certify the following question as “points of law of general public importance”, such as would have allowed the Applicants to apply to the Supreme Court for an appeal against the Court of Appeal’s decision: “In a criminal trial is the use of Closed Material Procedure by a Court for a particular purpose and/or in a particular circumstance lawful without there being in existence statutory provision granting the Court jurisdiction to use Closed Material Procedure for such purpose and/or in such circumstance?” 10. On 13 October 2011 the Court of Appeal refused to certify a point of law, effectively ending the domestic avenues of appeal. 11. The applicant, together with her mother “CJW”, sister “CG”, brother “RG” and another defendant, stood trial between February and March 2011 on six counts of conspiracy to defraud. The prosecution case was that, by adopting false identities, the defendants dishonestly involved themselves in fraudulent applications for housing benefit and council tax benefit in relation to various properties in different London boroughs, giving an estimated profit of GBP 112,000, which they used to purchase more property. Bianca Guthrie and her co-accused denied the charges. 12. The jury were sworn in on 7 February 2011. On 4 March 2011 one of the jurors complained that the previous day, when she was waiting for a pre-arranged lift outside the court house, a woman whom she had seen in the public gallery approached her and asked her a question about her telephone. At that point, Bianca Guthrie and CG walked past. The applicant walked on with the woman from the public gallery but CG stopped and asked the juror whether they had seen each other at a gay club and asked her for her telephone number. The juror panicked and gave her a false number. The following morning she told two other jurors what had happened. When she informed court staff, they isolated these three jurors until the trial judge had questioned each of them individually. The judge ascertained that each of the jurors felt able to continue with the case and to remain impartial. She then informed the parties what had happened. She revoked CG’s bail. When questioned, CG maintained that she had thought she recognised the woman from somewhere but had not realised she was a juror in her case. 13. Subsequently, the applicant’s brother, RG, made an application for the jury to be discharged on the ground that they were likely to view CG’s approach as an attempt improperly to influence them. The trial judge rejected this application, relying on the firm assertions of the three jurors who knew about the incident. 14. The jury retired on 11 March. On 15 March they acquitted one defendant. One juror was then discharged, because of a longstanding holiday commitment. 15. On 16 March 2011, after the jury had been sent back out to continue their deliberations, the trial judge was informed by the prosecution ex parte in chambers that one of the police officers involved in investigating the case had become aware of material that indicated that there had been possible interferences with the jury, intended to affect their deliberations. As a result, further inquiries were made but no disclosure was made to the defence on grounds of public interest immunity. It was decided to arrest SL, a former female companion of CG, who was alleged to have been implicated in the jury tampering. 16. The following morning the jury were sent away for the day. SL attended court in the afternoon and was arrested. At that point, it was disclosed to the defence that an allegation had been made that SL had been in contact with a member of the jury and that CJW, CG and Bianca Guthrie were aware of what had taken place. The three defendant members of the Guthrie family who were still at liberty were then remanded in custody. 17. On 18 March 2011 an inter partes hearing took place in chambers, to determine whether or not the trial judge should discharge the jury under the provisions of section 46(1) of the Criminal Justice Act 2003 (see below). Bianca Guthrie, together with RG, opposed the suggestion that the jury should be discharged and asked for the decision to be postponed until further inquiries could be made. However, the trial judge considered that any further delay would have an unsettling effect on the jury and that, since they had already retired, any further questioning would impinge upon the confidentiality of the jury room. She concluded that material had been placed before her in a cogent and compelling format which indicated that jury tampering had taken place, and that there was a “high degree of need” for the jury to be discharged. 18. On 24 March 2011 the gist statement already disclosed to the defence was amended and extended to provide as follows: “(i) An allegation has been made that a third party [SL] has been in contact with a female member of the jury in an attempt to ensure that the juror returned a not guilty verdict; and was contacting the juror about how deliberations were going. (ii) The jury member allegedly discussed jury voting and deliberations in the course of this contact. (iii) This contact is alleged to have taken place following the remand of [CG] on the 4th March 2011 up to and including the time when the jury were in retirement to consider their verdict. (iv) The contact between [SL] and the juror is alleged to have taken place ‘face to face’, with one of those meetings said to have taken place after the court had risen for the day and in close proximity to the court building and/or its grounds. This meeting may have been witnessed by another member of the jury. However [SL] is also alleged to have had the mobile telephone number of the juror. Contact is alleged to have taken place between [SL] and the juror on approximately 3 occasions. (v) It is understood that [CG], [the applicant] and the third party [SL] have been in communication since contact was made with the juror. (vi) [CJW] has also been involved. (vii) There is presently no direct evidence of the contact between [SL] and the juror. (viii) [SL] was arrested and interviewed in relation to this allegation.” A transcript of the interview with SL was also provided to the defence. 19. On 28 March 2011 the trial judge heard submissions from the prosecution and the representatives of the defendants on the issue whether the trial should continue without a jury, in accordance with section 46(3) of the Criminal Justice Act 2003 (see paragraph 23 below). With reference in particular to the Court of Appeal’s judgment in Twomey (see paragraph 8 above), the judge held that the right to trial by jury was not absolute under domestic law and was not required by Article 6 of the Convention. The judge next considered the question whether there would be a risk of bias if she were to continue with the trial, having already examined undisclosed material relating to the allegation of jury tampering, and having made rulings adverse to the defence on the basis of this material, including remanding the defendants in custody. She concluded that there was no real danger of a perception of bias, since the undisclosed material she had examined was not related to the criminal charges against the defendants, but only to the allegation of jury tampering. It was not unusual in a trial of such length for a judge to have made a number of rulings adverse to the defence and if the fact of having made such rulings disqualified her from proceeding with the trial under section 46(3) of the 2003 Act, it would be possible so to proceed only in very rare cases. Furthermore, of the eight or so rulings she had made so far, approximately half had been favourable to the defence. She held that, having undertaken a rigorous and thorough examination of the evidence, she was satisfied that jury tampering had taken place requiring the jury to be discharged, but that it would not be unfair to any of the defendants to continue with the trial without the jury. 20. The trial judge also gave leave for an interlocutory appeal on this issue, which took place on 10 May 2011. The Court of Appeal, having examined the undisclosed material which had been seen by the trial judge, gave its judgement on 26 July 2011, upholding the trial judge’s ruling. It observed that nothing considered by the trial judge under public interest immunity principles should have been disclosed to the defence; the gist statement provided to the defence accurately summarised the effect of that material; there was nothing in the material to suggest that the trial judge should have disqualified herself from continuing with the trial. The legislation did not suggest that the trial judge who examined evidence and made findings relating to the discharge of the jury should then recuse himself and it would be “strange if it were possible for a criminal or group of criminals to take extreme steps to undermine the process of trial by jury, and then to argue that the judge who had made the necessary findings would then have to disqualify himself”. 21. Subsequently, on 14 July 2011, the trial judge convicted all four remaining defendants of all the charges against them. 22. On 28 September 2011 the Supreme Court refused leave to appeal against the interlocutory judgment of the Court of Appeal. 23. Section 46 of the Criminal Justice Act 2003 provides as follows: “(1) This section applies where – (a) a judge is minded during a trial on indictment to discharge the jury, and (b) he is so minded because tampering appears to have taken place. (2) Before taking any steps to discharge the jury, the judge must – (a) inform the parties that he is minded to discharge the jury, (b) inform the parties of the grounds on which he is so minded, and (c) allow the parties an opportunity to make representations. (3) Where the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied – (a) that jury tampering has taken place, and (b) that to continue the trial without a jury would be fair to the defendant or defendants; But this is subject to subsection (4). (4) If the judge considers that it is necessary in the interests of justice for the trial to be terminated, he must terminate the trial. (5) Where the judge terminates the trial under subsection (4), he may make an order that any new trial which is to take place must be conducted without a jury if he is satisfied in respect of the new trial that both of the conditions set out in section 44 are likely to be fulfilled. (6) Subsection (5) is without prejudice to any other power that the judge may have on terminating the trial. (7) Subject to subsection (5), nothing in this section affects the application of section 43 or 44 in relation to any new trial which takes place following the termination of the trial.”