Sartin v Rex

Factual and Procedural Background

This opinion concerns an application for leave to appeal a decision by Judge Shetty at the Crown Court at Kingston-upon-Thames on 12 February 2024. The Judge ruled to continue a trial without a jury due to jury tampering, pursuant to section 46 of the Criminal Justice Act 2003. The challenge to this ruling was made under section 47 of the same Act. Leave to appeal had initially been refused by the Judge, but was subsequently granted by the full court despite being lodged 16 days late, on the basis that the appeal was arguable and in the interests of justice.

The appellant, referred to herein as Defendant, was charged alongside eight co-defendants with conspiracy to evade export prohibition of a Class A controlled drug concealed within a machine exported to Australia. Bail was refused due to flight risk, a decision unsuccessfully challenged by judicial review. The co-defendants' trial concluded with convictions and lengthy custodial sentences. Defendant was severed from that trial due to recent cancer surgery.

A fitness to plead hearing was held shortly before Defendant's trial, where the Judge, after considering expert medical evidence, found Defendant fit to plead despite some symptoms of depression and memory loss, which the Judge found somewhat exaggerated. Defendant's trial began on 15 January 2024; on the first day, Defendant did not attend court following a reported suicide attempt, which the Judge suspected was an attempt to delay trial. The trial lasted over four weeks with reasonable adjustments made for Defendant's depression.

On 7 February 2024, the jury retired, but on 8 February a juror reported intimidating conduct by a man outside the court, who had previously been abusive and connected to Defendant. Following submissions, the Judge discharged the jury under section 46. The prosecution sought to continue the trial without a jury, while the defence requested a new trial with a jury. The Judge ruled to continue without a jury and refused leave to appeal that decision.

Legal Issues Presented

1. Whether the continuation of a trial without a jury under section 46 of the Criminal Justice Act 2003, following jury tampering, was lawful and fair.
2. Whether the Judge displayed actual or apparent bias that would render it unfair to continue the trial without a jury.
3. The extent to which prior involvement of the Judge in a related trial and comments made during fitness to plead and trial management affected impartiality.
4. The appropriateness of refusing leave to appeal the decision to proceed without a jury.

Arguments of the Parties

Appellant's Arguments

• The loss of the right to a jury trial was unfair, especially as Defendant had done nothing wrong to cause jury tampering.
• The Judge’s prior involvement in the first trial raised risks of subconscious or actual bias, as evidence and assessments from that trial could improperly influence the Judge.
• References by the Judge to Defendant’s relationships and control over co-defendants during sentencing of others suggested prejudgment.
• Findings during the fitness to plead hearing that Defendant exaggerated symptoms impugned Defendant’s honesty and could bias the Judge.
• Comments by the Judge on the first day of trial implying Defendant’s suicide attempt was a manipulative delay tactic indicated actual bias.
• The refusal of bail and associated judicial review raised further concerns about bias, as these issues were not before the jury but could influence the Judge sitting alone.

Respondent's Arguments

• Following recent authoritative guidance, the normal approach after jury tampering is to discharge the jury and continue the trial, which the Judge, being well placed, properly assessed.
• There was no material evidence from the first trial that would damage Defendant’s case or suggest bias; no direct implication of Defendant in wrongdoing was made previously.
• The Judge’s sentencing remarks did not amount to bias as they merely described others’ statements and did not assess Defendant’s credibility.
• The Judge’s fitness to plead findings were restrained, did not amount to malingering findings, and did not affect impartiality in the trial.
• Defendant’s credibility was fully tested during the trial, and the Judge’s comments on the first day were provisional and relevant to case management, not evidence of bias.
• The refusal of bail was based on the seriousness of charges and not on credibility, and the unsuccessful judicial review does not indicate bias.
• Overall, there was no unfairness, actual bias, or reasonable perception of bias in proceeding without a jury.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by affirming the statutory framework under sections 46 and 47 of the Criminal Justice Act 2003, acknowledging that jury tampering justifies discharge of the jury and continuation of trial without jury except in unusual circumstances. The Court accepted that the Judge was well placed to assess fairness and the interests of justice.

Regarding allegations of bias, the Court applied the test from Porter v Magill, considering whether a fair-minded and informed observer would perceive a real possibility of bias. It found that prior involvement in a related trial did not disqualify the Judge, especially as the Judge’s memory of that trial was not fresh and no direct implication of Defendant arose from it.

The Court rejected claims that sentencing remarks or bail refusal indicated bias, noting these were based on seriousness of charges rather than credibility assessments. The fitness to plead hearing comments were seen as restrained and relevant only to that hearing, not undermining impartiality in the trial.

The Judge’s comments on Defendant’s absence and possible suicide attempt were considered provisional and part of necessary case management, not evidence of bias. The Court emphasized that the Judge conducted the four-week trial meticulously and fairly, and that Defendant’s credibility was robustly tested during live evidence.

In sum, the Court found no actual or apparent bias, no unfairness, and no unusual circumstances preventing continuation without a jury. The statutory scheme permitting trial without jury after jury tampering was properly applied.

Holding and Implications

The appeal is dismissed.

The Court upheld the decision to continue the trial without a jury following jury tampering. This ruling confirms that, absent unusual circumstances such as demonstrated bias, a judge’s continuation of trial alone is lawful and fair under section 46 of the Criminal Justice Act 2003. The decision directly affects the parties by affirming the trial process but does not establish new precedent beyond applying existing authoritative guidance. Reporting restrictions were lifted in light of the decision.