R v Twomey & Ors

Factual and Procedural Background

On 6th February 2004, an armed robbery took place at warehouse premises belonging to Company A at The City Airport, targeting a large amount of currency. The actual proceeds were significantly less than anticipated. Over six years later, on 31st March 2010, the Appellants were convicted at the Central Criminal Court before Judge Treacy, sitting without a jury under statutory provisions, for robbery and possession of a firearm with intent to commit robbery. One appellant was additionally convicted of attempting to cause grievous bodily harm and possession of a firearm with intent to endanger life. The jury was discharged due to concerns of jury tampering, making this the only case in the jurisdiction tried by judge alone to avoid the risk of jury nobbling.

The procedural history involved multiple trials before Judge Roberts QC, including a first trial in 2005 which was aborted due to the illness of one defendant and a hung jury for others, leading to retrials. During the second retrial, evidence emerged of jury tampering, leading to the discharge of the jury and a referral to another judge for consideration of a trial without jury. After examination of confidential material under public interest immunity (PII) conditions, the court ordered the fourth trial to proceed before a judge alone. The Appellants appealed the order for trial by judge alone and subsequent convictions, raising multiple grounds including procedural fairness and evidential sufficiency.

Legal Issues Presented

1. Whether the order for trial by judge alone, made on the basis of undisclosed material relating to jury tampering, was procedurally fair in light of the decision in Secretary of State for the Home Department v AF and others (No 3).
2. Whether the trial judge’s exposure to undisclosed material under public interest immunity principles created actual or perceived bias.
3. Whether the trial judge erred in refusing to order severance of trials among defendants.
4. The proper approach to the evaluation of an accomplice’s evidence.
5. Whether there was a case to answer and whether the conviction of one appellant was safe based on circumstantial and direct evidence.

Arguments of the Parties

Appellants' Arguments

• The order for trial by judge alone was procedurally unfair because the defendants were not provided with the core material on which the finding of jury tampering was based, contrary to the principles established in AF (No 3).
• The trial judge’s examination of undisclosed material under PII conditions may have created actual or perceived bias against the appellants.
• The trial judge should have examined all material relating to jury tampering to identify which defendants were involved, and ordered severance to allow those not involved to be tried by jury.
• The evidence of the accomplice witness Brockwell was unreliable and should have been treated with caution similar to confessions obtained under questionable circumstances.
• There was no case to answer for one appellant and the conviction was unsafe due to insufficient circumstantial evidence.
• Sentences imposed on two appellants were excessive, particularly in light of their roles and personal mitigation.

Court's Response to Arguments

• The court held that the order for trial by judge alone was lawful and fair, and that AF (No 3) did not apply to pre-trial decisions regarding mode of trial.
• The court found no evidence that the trial judge was biased or improperly influenced by undisclosed material.
• The court rejected the severance argument as unrealistic and inconsistent with statutory provisions.
• The trial judge properly evaluated Brockwell’s evidence as reliable despite the need for caution.
• The court concluded there was a sufficient case to answer and that the conviction was safe.
• The court found no error in sentencing decisions and dismissed appeals against sentence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Secretary of State for the Home Department v AF and others (No 3) [2009] 3 WLR 74	Procedural fairness in use of undisclosed material in control order proceedings requiring disclosure of core material to affected parties.	The court held AF (No 3) did not apply to the mode of trial decision; the order for trial by judge alone was lawful without disclosure of core material.
Secretary of State for the Home Department v M, B and AF [2008] AC 440	Use of closed material and procedural fairness in control order proceedings.	Referenced in submissions but distinguished as not directly applicable to mode of trial decisions in criminal proceedings.
R v Comerford [1998] 1 Cr App R 235	Jury tampering (jury nobbling) and procedural safeguards in jury protection orders.	Supported the principle that non-disclosure of material in jury protection applications can be justified and does not necessarily render a trial unfair.
R v H and C [2004] 2 CAR 10	Principles of disclosure and public interest immunity in criminal proceedings.	Confirmed that non-disclosure can be justified and outlined principles for balancing fairness and public interest immunity.
Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91	Balancing interests of accused, victims, and public in criminal justice.	Referenced to underline the need for fairness within the wider context of criminal justice administration.
R v Turner [1975] 61 CAR 67	Sentencing guidelines for armed robbery involving firearms.	Noted as an older guideline superseded by more recent case law and sentencing practice.
R v Jenkins [2009] 1 CAR (S) 109	Modern sentencing principles for armed robbery.	Confirmed that Turner no longer sets a ceiling for sentencing in armed robbery cases.

Court's Reasoning and Analysis

The court carefully examined the statutory framework permitting trial by judge alone where there is a real and present danger of jury tampering. It emphasized that the right to trial by jury is a statutory right subject to limitation and not protected by the European Convention on Human Rights as an absolute right. The court distinguished the procedural fairness requirements in AF (No 3), which concerned control orders restricting liberty, from the present context where the mode of trial is at issue without affecting liberty or property rights.

The court found that the trial judge properly conducted the trial fairly and impartially, and that the appellants received a fair trial before a competent tribunal. The court rejected the argument that the trial was a nullity due to the order for trial by judge alone.

In relation to public interest immunity, the court reviewed all material seen by the trial judge and concluded that no undisclosed material undermined the fairness of the trial or prejudiced the appellants. The court also rejected the argument for severance, finding it impractical and inconsistent with the statutory scheme.

Regarding the evaluation of the accomplice witness Brockwell, the court found the trial judge’s assessment, which involved careful scrutiny of credibility and reliability, was sound and justified. The court acknowledged some minor inconsistencies in Brockwell’s evidence but found them insufficient to undermine his overall reliability.

On the sufficiency of the evidence against one appellant, the court found that there was ample direct and circumstantial evidence supporting the conviction, and the trial judge was correct to refuse a no case to answer submission.

Sentencing was upheld after the court considered the seriousness of the offence, the roles played by the appellants, and relevant sentencing guidelines and precedents. The court found no manifestly excessive sentences and rejected claims of unfairness due to differences in release regimes.

Holding and Implications

The court DISMISSED all appeals against conviction and sentence.

The direct effect of this decision is the affirmation of convictions and sentences imposed after a trial conducted by judge alone due to jury tampering concerns. The court confirmed the lawfulness and fairness of trial without jury in such circumstances, and clarified that procedural fairness principles from control order cases do not extend to pre-trial mode of trial decisions. No new precedent altering the legal framework was established beyond the application of existing statutory provisions and case law.