A flying start

The new year has started with unusual vivacity: three of the most exceptional powers in our legal system are under scrutiny at the same time. The first English criminal trial began at the Royal Courts of Justice '“ an unusual venue for criminal lawyers, who generally only enter those marble halls when a case has gone pear shaped (like so many of us after Christmas) and they need a Court of Appeal massage and detox service.

The trial of four men on 18 counts relating to armed robbery started before Mr Justice Treacy '“ and a jury box full of the press '“ with some interesting procedural points, not least the question of how he was to deal with possibly prejudicial disclosure issues.

The power to dispense with juries under section 44 of the Criminal Justice Act 2003 provides that a judge must order that a trial be conducted without a jury where two conditions are satisfied. The first is that there is evidence of a real and present danger that jury tampering would take place. The second is that 'notwithstanding any steps which might reasonably be taken to prevent jury tampering the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury'.

On paper it seems that only if nothing can be done to stop the jury being nobbled, then a judge alone is the last resort '“ in reality the requirement of reasonableness brings in cost and resources arguments. In this case, there was evidence of tampering which came to light at the end of a long trial before Judge Roberts at the Bailey, which was accepted as predicative of future risk in any other trial. The jury was discharged, and not one but two packages of steps to protect a new jury from being got at were devised. One would have cost £1.5m and used 32 police officers, the other £6m and 82 officers.

Risk of injustice

With such protection possible, another Bailey judge refused the prosecution's application to hear the trial by judge alone. The Crown's interlocutory appeal succeeded. The Court of Appeal held that the risk of injustice in this case was so great that even the most elaborate protective package would not obviate it, and that in any event it was not reasonable to impose the financial and resources burden of it on the police, or impose the restrictions necessitated by the package on the jury themselves.

In an argument taken from Northern Irish jurisprudence, it was agreed that onerous protective measures could also prejudice jurors against the defendants themselves. The precise nature of the measures to protect the jury were kept secret from the defence, logically enough, as was the evidence about what approaches were made to the jury, how the police knew about this and the evidential basis for future risks to other juries.

The material was examined under PII conditions in accordance with PII principles '“ the defence argument that they were prevented from making meaningful representations because they had not seen the material was neatly countered: if evidence of the clear and present danger of jury tampering was so sensitive that it could be harmful to police methodology or useful to criminals, then discontinuing a case because it could not be disclosed would ensure jury tampering worked.

This particular case was heavy with historical importance, which all judges concerned were of course alive to. It went through two senior Bailey judges and the Court of Appeal, with three reviews of sensitive material '“ clearly, great care was taken by everyone concerned.

The problem is not this case '“ but the future. Now that the provision has been used once, will every such case be dealt with so carefully? Or might inaccurate and misleading information corrupt a radical provision which needs exemplary professionalism to counter balance the dangers of secret information and secret decisions?

Anti-terrorist powers

The spotlight fell also on another exceptional measure, the power to proscribe organisations 'concerned with terrorism' under section 3 of the Terrorism Act 2000. An order banning Islam4UK has been laid before Parliament, to add it to the list of 45 organisations banned under schedule 2 of the Act.

Was it a coincidence that the organisation was planning to march with empty coffins, symbolising Moslem deaths in Afghanistan, through a town more used to seeing full ones containing dead soldiers? That is a case where one hopes there was sensitive and secret material hidden from the hoi polloi like us: otherwise it betrays a damaging failure of belief in freedom of speech. To mean anything, that right cannot be limited to those people we agree with, and must cover the offensive, the hurtful as well as the publicity seeking mischievous as well.

It wasn't a good month for the government's anti-terrorist powers generally. The European Court decided that section 44 of the Terrorism Act 2000 violates the right to respect for private life guaranteed by article 8 of the Convention. Section 44 gives police a right to stop anyone, without suspicion, and to search them if they are in a designated area: it was discovered in 2003 that the whole of Greater London had been secretly designated on a rolling basis since 2001.

The powers were used to stop, search and actually prevent the applicants Gillan and Quinton from attending an arms fair in Docklands. Under section 44 as it was, police officers only had to establish that the area had been properly designated as suitable for stop and search by an assistant chief constable, and that the person they wanted to search was there.

Liberty, who brought the case, are now trying to push through amendments to the Crime and Security Bill which might make section 44 more palatable '“ designations should be for a specific limited area, because of a specific need, for a short time and no longer than 24 hours, openly published, and open to review by Parliament if renewed more than six times. All very sensible, and a good start to an interesting year.