Leslie Allen [2019] EWCA Crim 1256

The judge exercised the powers conferred by s46 of the Criminal Justice Act 2003 in a case where there had been jury tampering. The applicant accepted that there had been jury tampering, but his case was that he was wholly uninvolved in it and rather than the judge making a decision on guilt himself the trial should have been terminated and started again with another jury. He sought an order for a retrial.

The judge followed the procedure under s46 dealing with the discharge of a jury because of jury tampering. The grounds for the appeal were that the judge erred in “refusing to allow” the applicant the opportunity to appeal (under s47) and that he erred in making his order under s46 as the applicant was not involved in the jury tampering and the interest of justice required the trial to be terminated.

It cannot be said that the judge “refused to allow” the applicant the opportunity to appeal. There was a discussion of the right of appeal under s47 and when it should be exercised. A provisional consensus was that if the ruling went against the applicant it would not be amenable to an interlocutory appeal. The judge addressed defence counsel saying that any further submissions could be made the following day after further research had been carried out. No further submissions were made. It may be said that it was irregular for the trial to proceed before the 5 days prescribed by the statue had elapsed, but nobody sought to delay proceedings. This does not make the further process a nullity or the conviction unsafe.

The second ground of appeal did not have a real prospect of success before the full court. The first question for the judge was, is it necessary in the interest of justice for the trial to be terminated. If so, he was obliged to do so. If not, would it be fair to the defendant to proceed without a jury? If yes, he had a discretion. This was a straightforward case evidentially and the judge was satisfied that the interests of justice did not require him to terminate the trial and it was fair to continue. Neither the judge’s decisions nor the process followed by the judge can be impugned. It could not be argued the conviction was unsafe and the application was refused.