Nicola Monaghan, is a Principal Lecturer in
Law at the University of Worcester teaching Criminal Law and the Law of Evidence. In this Academic Blog she takes us through the consequences of Jury tampering and what it means in the criminal justice system:
The right to trial by jury is a fundamental feature of our criminal justice system. Trial by a jury of 12 peers has famously been described as “the lamp that shows that freedom lives” (Lord Devlin, Trial by Jury (1956)). The jury is a revered institution that symbolises democratic engagement in the execution of the criminal justice system and safeguards independence and integrity in the trial process.
However, in 2002, the Deputy Commissioner of the Metropolitan Police said that jury tampering was a “major problem” and it was reported in the media that the Metropolitan Police alone was paying out £4.5 million per year on protecting juries. This was reported to be a problem for other police forces in the country too, where members of juries were offered bribes or pressured into reaching a not guilty verdict by the defendant or associates of the defendant (Goodchild, “Cases of Jury Tampering Soar”, The Independent, 29th December 2002). This raises a few questions about how the criminal courts tackle allegations of jury tampering and the consequences of jury tampering for the trial itself, for the person tampering with the jury, and for any jurors themselves.
What happens to the trial?
Section 44 of the Criminal Justice Act 2003 permits a trial to be conducted without a jury where there is a danger of jury tampering. The prosecution may make an application to the trial judge, and if the judge is satisfied that the following two conditions are met, the judge must make an order that the trial is conducted without a jury. The first condition is that there is evidence of a real and present danger that jury tampering would take place. The second condition is that notwithstanding any steps which might reasonably be taken to prevent jury tampering (such as the provision of police protection), the likelihood that jury tampering would take place would be so substantial that it is in the interests of justice that the trial be conducted without a jury.
This provision was famously used for the first time in the case of R v Twomey and others [2009] EWCA Crim 1035. The defendants in this case were charged with serious offences relating to a professionally executed armed robbery at a warehouse in Heathrow in 2004 during which £1.75 million was stolen. The charges included serious offences, such as possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery, robbery, and conspiracy to rob. After allegations of jury tampering, the prosecution applied to have the case tried without and jury. The initial application was refused, but on appeal, Lord Chief Justice Judge ruled that the measures necessary to protect the jury would be unreasonable (these were estimated to be about £6 million and involve 82 police officers). In 2010, the trial was heard by a judge alone sitting initially at the Royal Courts of Justice. However, the trial had to be moved to the Old Bailey for added security after one of the defendants absconded during an adjournment. The defendants were convicted by Mr Justice Treacy, who retired to consider his verdict for 12 days. They were sentenced to lengthy sentences of imprisonment.
Judge alone trials are generally not favoured by defendants who prefer to be tried by a jury of their peers. Judges are thought to be case hardened and more likely to convict a defendant than a jury. One procedural peculiarity of a trial by judge alone is that judges will hear legal argument on matters which might affect whether the prosecution would be able to rely on certain types of evidence. These legal issues would usually be considered in the absence of the jury, but a judge will hear about the evidence which they might then rule to be inadmissible, before retiring to consider their verdict. The judge must then, somewhat artificially, put that inadmissible evidence out of their mind when considering their verdict. While this is also something that magistrates also have to contend with, the serious nature of the crimes tried by juries does raise questions about the practicalities of applying the rules of evidence in judge alone trials.
What are the potential implications for the alleged perpetrator of the tampering?
There are a variety of possible options for a prosecutor seeking to charge someone in relation to allegations of jury tampering. Intimidating a juror would fall within the specific offence of intimidation or witnesses and jurors under s.51 of the Criminal Justice and Public Order Act 1994, although many of the reported cases involving s.51 seem to be cases of witness intimidation rather than juror intimidation. The old common law offence of embracery used to cover attempts to influence a jury by offering inducements or bribes. This offence was abolished by s.17 of the Bribery Act 2010 and bribing a juror is more likely to be charged as perverting the course of justice or bribery under the Bribery Act 2010. Tampering with a juror or jurors would also be a contempt of court.
Can a juror be guilty of anything?
Jurors who accept a bribe might also find themselves guilty of criminal offence or in contempt of court. Thankfully, cases of jurors accepting bribes seem to be extremely rare, but in 2018, in the first case of its kind in Scotland, Catherine Leahy became the first juror to be prosecuted in relation to accepting a bribe in what the Procurator Fiscal, Liam Murphy, referred to as an “exceptionally rare” case (Crown Office & Procurator Fiscal Service, Juror jailed, 19th April 2018). Leahy was a juror in a drug trafficking and money laundering trial and she was alleged to have received almost £3,000 in four instalments for agreeing to not properly carry out her role as a juror in the case. The police investigation against Leahy used covert audio surveillance to record her conversations with a family member at her home. She was convicted under the Bribery Act 2010 and was imprisoned for 6 years. After her conviction, Lord Turnbull, High Court judge in Glasgow, told Leahy that “This is conduct which strikes at the heart of the justice system. It is matched in its gravity by its rareness”.
Intimidation by other jurors?
There are also various cases of jury misconduct involving bullying and intimidatory behaviour by jurors towards other jurors. In R v Abidi and others [2016] EWCA Crim 119, after the jury retired to consider its verdict, the judge received a note in which one juror stated that he felt threatened by other jurors and was concerned about this own safety. The difficulty with these types of case though is that deliberations are generally protected by common law secrecy rules, but perhaps this is a topic for a future blog post.
Ultimately, in order to protect the integrity of our jury system and safeguard against its erosion, there must be the potential for legal consequences to be pursued by the authorities in cases of jury tampering.
Nicola Monaghan has published textbooks on Criminal Law (Oxford University Press) and the Law of Evidence (Cambridge University Press) as well as other books. Her research interests include jury misconduct and the criminal trial, and she has published a wide range of journal articles. She is a non-practising barrister and a member of the Honourable Society of the Middle Temple.
Law courses are available within our School of Humanities