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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> KS, R. v (Rev 2) [2009] EWCA Crim 2377 (17 November 2009)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2377.html
Cite as: [2009] EWCA Crim 2377, [2010] 1 WLR 2511, [2010] 1 Cr App R 20, [2010] 1 All ER 1084, [2010] 1 Cr App Rep 20, [2010] Crim LR 643, [2010] WLR 2511

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Neutral Citation Number: [2009] EWCA Crim 2377
Case No: 2009/04170/B5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT Y
HIS HONOUR JUDGE X

Royal Courts of Justice
Strand, London, WC2A 2LL
17/11/2009

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE KEITH

____________________

Between:
R

- v -

KS

____________________

Mr D. H QC and Mr M S for the Appellant
Mr J K and Mr N C for the Crown
Hearing dates : 14th October 2009

____________________

HTML REDACTED VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Lord Chief Justice of England and Wales:

  1. With leave under section 47(1) of the Criminal Justice Act 2003 (the 2003 Act), this is an appeal against orders made by His Honour Judge X at Y Crown Court on 5th and 6th August 2009 that the jury in the trial of R v KS should be discharged and that the trial should continue before him as a judge alone trial. Although there is argument to consider about the discharge of the jury, it has in fact been discharged, and in reality we are concerned with the aftermath.
  2. The essential nature of the case against the appellant can be briefly summarised. The allegation arises from a very substantial VAT fraud known as an MTIC (or "carousel") fraud and the arrangements made for laundering the proceeds of the criminal enterprise. That brief statement fails to convey that the trial with which this appeal is concerned was no less than the tenth trial in which different aspects of the fraud, and the roles of numerous different individuals, were examined. Many of them were convicted. Following conviction, sentences were imposed, and confiscation proceedings conducted. Judge X presided over all these trials and post trial hearings. In the first of this group of trials the Crown alleged that the appellant was one of those directly involved in the conspiracy to defraud with particular responsibility for laundering the proceeds. He was acquitted of conspiracy to cheat the Revenue and of one count of money laundering and the jury was unable to agree verdicts on two counts of money laundering. After a lengthy delay, arising in part from the non-availability of counsel of the appellant's choice, and after a further eight trials, addressing different aspects of the fraud, the Crown proceeded to a fresh trial of the appellant on substantive counts, adding two further similar counts to the indictment.
  3. Omitting irrelevant words, the first count alleged that the appellant, together with CH, assisted DS, ND and other persons unknown, in the transfer and concealment of money which he knew or believed to be the proceeds of the criminal activity of DS, ND, and other persons unknown, namely by assisting in the opening of a bank account in a false name. The second count alleged that the appellant, together with DC, knowing or having reasonable grounds to suspect that property held in a bank account in the name of MD was, or in whole or in part directly or indirectly represented, the proceeds of another person's criminal conduct, converted or transferred that property for the purposes of avoiding the making or enforcement of a confiscation order. The third count alleged that the appellant, together with DC, DD and BT, converted or transferred property for the purposes of avoiding a confiscation order. The fourth count alleged that the appellant together with MM and LM converted or transferred the proceeds of criminal conduct. None of the individuals identified in these four counts was on trial with the appellant at this retrial, where he was the only defendant. However, all of them had been involved in one or more of the earlier trials, and in a series of trials in which the appellant featured, although he was not a defendant, CH, DS, DC, DD, BT, MM and LM were all convicted by juries and thereafter sentenced on different occasions by Judge X to imprisonment for between 18 months and 5 years.
  4. It is perhaps fair to record at the outset that the judge's entire career both at the Bar and on the Bench has been based on an intuitive, wholehearted commitment to the jury system. As he put it in his judgment in this case, the belief that the trial of defendants for serious offences should be tried by a jury "pulsates" in the blood stream. Nevertheless in this case, and in accordance with his judgment of the requirements of sections 44-46 of the 2003 Act and in the context of guidance recently given by this court in R v T [2009] EWCA Crim 1035, on the basis that he was sure that tampering of the jury had taken place, he discharged the jury, and then decided that the appropriate course was for him to continue the trial. He indicated that he would proceed to write his judgment, but postpone delivering it until an application for leave to appeal against his decisions was considered and decided in this court. Apart from the judge himself, no one knows what his verdict would be.
  5. The re-trial began on 6 July. After several weeks, the judge concluded his summing up. The jury retired on 3 August, just before lunch. On 4 August counsel for the Crown asked to see the judge ex-parte in closed court without notice to counsel for the defendant on the basis that intelligence received from an outside agency established that jury tampering had taken place. At the hearing the judge required live testimony to be called before him. He examined the possibility that the information was no more than "disinformation" planted to persuade him to discharge the jury. Indeed, the judge made every realistic inquiry and examined every possibility, and sought every proper means to cross check the information he had been given.
  6. The end result was that there was convincing material which established jury tampering. We have considered the same material, save that the evidence given by the witnesses live before the judge was before us in transcript form. Although his conclusion was based on material presented to him on PII principles, it was given a measure of support by evidence which was capable of disclosure and which was disclosed to the defence. That said, what was disclosed to Mr H QC would have been insufficient, taken on its own, to justify the conclusion that tampering had occurred. In the course of examining the PII material ourselves, we ordered further disclosure, but even with the additional material now disclosed, the conclusion that jury tampering had taken place depended and depends on the undisclosed material.
  7. On 5 August, in the absence of the jury, the judge told Mr H that he was minded to discharge the jury on the basis of jury tampering. Mr H submitted that the evidence with which he had been provided was quite insufficient to justify that conclusion.
  8. The judge indicated that he was not unsympathetic to that submission. He acknowledged the difficulty faced by Mr H "because he does not have access to the other information, which I have. He makes his submissions therefore on the basis of the evidence he has, and if that was the only evidence before me, his submissions have some merit. However, my judgment is, that the material that he has seen, supports and corroborates the material he has not seen…"
  9. The basis for his conclusion that he was sure that jury tampering had taken place is contained in a closed, carefully reasoned judgment. It represents a finding of fact. We have re-examined all the material, as well as the reasoning which led the judge to his conclusion. We agree with both. We also agree that given the stage reached in the trial, that is, that the jury had already been deliberating its verdict, possible alternative solutions which might have been appropriate if jury tampering had been established at an earlier stage in the trial could not be adopted. At that stage of the proceedings, no remedy other than the discharge of the jury was available or appropriate.
  10. The judge then addressed the possible consequences of his decision and in deference to an application by Mr H for time to reflect on these issues, after discharging the jury, he adjourned the hearing.
  11. When the hearing resumed Mr H sought to persuade the judge that although the jury had been discharged, the trial should not continue – or in other words that the judge should not proceed personally to reflect on the evidence and reach the verdict himself - but should order a fresh trial before a new jury. In essence Mr H drew attention to a number of considerations which should have led the judge to terminate the trial, some were broad and general, some specific to this case and indeed this judge. He relied on their cumulative impact to persuade the judge that it would be wrong for him to follow what was said to be the assumption derived from R v T that where jury tampering had taken place the trial should continue to its conclusion with the judge sitting on his own. With characteristic courtesy, but nevertheless unequivocally, he submitted that all the information and knowledge accumulated by a judge who had presided over the earlier nine trials involving the same broad criminal enterprise would make it impossible for him to reach an independent fair judgment in the case, and that the perception would inevitably be that the process was unfair, and that any verdict (although in reality Mr H was concerned with a possible "guilty" verdict) would be and would appear to be unfair.
  12. In his ruling, the judge identified the guidance in R v T that "save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial". This, as he observed "makes the judge's task doubly onerous but that is something Parliament has deemed we should not shirk from". He then examined whether the circumstances were "unusual" and directed himself to consider whether he was sure that "to continue without the jury would be fair to the defendant, bearing in mind that this is in the context of a finding that there has been tampering with the jury in the circumstances dealt with in my closed judgment." He reminded himself that a judge should be assumed to be capable of putting out of his mind and not allow himself to be prejudiced by any material which had not been placed before the jury, but which, in the variety of different circumstances which might arise, had been seen and examined by him, whether, for example, in PII hearings or in rulings in the absence of the jury but in open court on admissibility. He expressed himself sure that to continue without the jury would not be unfair to the defendant. He then went on to examine the material which might lead a "fully informed fair-minded observer" to conclude that the tribunal was biased. He expressed himself satisfied that he would not. He examined the interests of justice broadly. He decided that the trial should proceed without a jury.
  13. In essence the grounds of appeal reflect the submissions advanced by Mr H and rejected by Judge X. We must consider each in turn.
  14. The first ground of appeal is that the judge should have considered alternative methods of resolving the situation before utilising the relevant provisions of the 2003 Act. We agree that he should, and that is what he did. Once the trial has started before the jury the objective is that it should be completed before that jury. The power to discharge the jury on the grounds of jury tampering is a new, additional measure to deal with the problem which adds to rather than diminishes the court's ability to protect the integrity of any trial. In short, the relevant statutory provisions in the Juries Act 1974 and the broad, discretionary but well understood common law principles which enable the judge to discharge the entire jury or an individual juror at any time for good and sufficient grounds are neither extinguished nor reduced. The new statutory provisions underline that the jury is not to be discharged unless the judge is "minded" to discharge it, and no judge, properly exercising his responsibilities, would discharge the entire jury from giving a verdict, unless satisfied that the problem was incapable of remedy by any other means, including, for example, the discharge of an individual juror. In short, we acknowledge and emphasise that this is always a measure of last resort. However once the jury has been in retirement it would usually be impossible for the judge to make any informed decision about the impact a suborned juror might already have had on the deliberations of the jury as a whole: no realistic alternative to the discharge of the entire jury would normally be available. None was available in this case.
  15. The second and third grounds involve a direct and specific attack on the decision to discharge the jury on the basis that the decision depended on information which was not disclosed to the defence and which Mr H on the defendant's behalf could not question or address. It was therefore wrong in principle and unfair to the appellant. It is obvious that Mr H was not permitted directly to address the material drawn to the judge's attention under PII principles which the judge decided on the basis of the public interest should not be disclosed. Given the critical importance of that material to the ultimate decision, Mr H was plainly disadvantaged.
  16. These grounds of appeal address a sensitive issue. It is an elementary principle of the administration of criminal justice that the defendant should be enabled to prepare for his trial. For this purpose he must be informed of the offence alleged against him and provided with a proper opportunity to examine and address the evidence to be used in support of the allegation. Article 6(3) of the European Convention on Human Rights summarises well known and long-standing principles of the common law which guard and protect the liberty of the individual. It is a minimum right for everyone charged with a criminal offence that he or she should be "informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him and…to have adequate time and facilities for the preparation of his defence." The phrase "charged with a criminal offence" has been given a wide interpretation. Dealing with it generally it extends to any proceedings which may conclude in penal or disciplinary sanctions, and in particular, which may culminate in a deprivation or restriction of liberty. Thus, these principles were recently confirmed by the House of Lords in the context of control orders made under section 2 of the Prevention of Terrorism Act 2005 which created a statutory structure which imposed significant reductions on the liberty of the individual made subject to such orders. (AF and others v Secretary of State for the Home Department [2009] UKHL 28). There will, in addition, be occasions when the trial processes themselves will be so inextricably intermingled with an outcome which may culminate in penal or disciplinary sanctions that the same principles will be made to apply to the procedural steps which may lead to such sanctions, as well as to the sanctions themselves. That however is a consequence of the need to protect the principles of a fair trial rather than to vest procedural issues with a significance which, taken in isolation from the substantive question, they do not merit. The present appeal is directed to the question whether the trial court has jurisdiction to deliver its verdict rather than with the fairness of the trial itself, or indeed the trial process.
  17. Mr H, while acknowledging the distinction between the liberty of the individual and the question whether he should be tried by judge alone or by jury, focussed attention on the statutory provisions in section 46(2) which require the judge considering whether to discharge the jury on the grounds of jury tampering to inform the parties not merely that he is so minded, but also to
  18. "…(b) inform the parties of the grounds on which he is so minded,
    (c) allow the parties an opportunity to make representations."

  19. It is clear from the disclosed material and the transcripts of the hearing in open court that Mr H was aware that the basis for the judge becoming "minded" to discharge the jury was "interference with one of the jurors". Thus, before Mr H made the relevant submissions to the judge, he noted that in view of the directions the judge had already given to the jury at an earlier stage in the trial, any juror who was concerned that he was being "tampered with" would have initiated some kind of complaint or notification to the court. That had not happened. He also noted some of the difficulties connected with the layout of the court, the arrangements to permit smoking outside the building, and the inevitable occasions of contact between any of those who wished to smoke, whether they were jurors or interested members of the public. Concerns had been expressed by the prosecution to the defence at an earlier stage about the risk of improper contact between a close friend or associate of the appellant, who drove him to court daily, and members of the jury. The material disclosed to Mr H made clear the identity of the juror who had been tampered with. This came from witness statements provided to him, and was also based on events which had been observed in court.
  20. Sufficient material was disclosed for an associate of the defendant to seek to address the contention that he was or may have been involved in the process of jury tampering by the production of a witness statement, prepared for the purposes of this appeal. In it he sought to address the areas of concern. Thus, for example, he recorded that he had never been involved in any conversation with a member of the jury "with intent to pervert the course of justice" and that he had never "improperly communicated" with the jury with such an intent. He acknowledged that he had been advised "very strongly to keep a distance from any juror", and that he had been warned that if the court was made aware by the prosecution "of any conversations with juror members it could lead to them being discharged and that the courts…had powers to continue the trial without a jury." He described general conversations among jury members which he had overheard while having a smoke with them on 28 July. Effectively, however, he contended that the jurors had been courteous to everyone involved, including himself, the defendant, "the defence team" as well as to the prosecution team and the customs officers involved in the prosecution. He denied any eye contact with the "so-called jury member…that I was supposed to be looking at" in court. In short, the material which supported the contention of jury tampering was sufficiently clear for the defence to identify both the individual said to be responsible for the jury tampering and the juror who had been suborned.
  21. It is an inevitable concomitant of the extended powers of the court to control jury tampering that there will be occasions when public interest immunity principles will apply to the information brought to its attention. In reality the principles are not new: the judge has always been entitled not to disclose the reasons why he may see fit to discharge an individual juror or an entire jury. In any event it is obvious that if they were disapplied there would be occasions when the court would be obliged to continue with a trial even when satisfied, after an examination of the evidence submitted under public interest immunity principles, that the jury was contaminated by and as a result of tampering. In other words, the court would permit a tainted jury to deliver its verdict, notwithstanding clear evidence which demonstrated that the verdict would not be or would be unlikely to be a true verdict reached by an uncontaminated jury. That would make a nonsense of the legislation, and indeed, quite apart from making the judge complicit in the successful contamination of the jury, (successful, because the trial is allowed to continue) would undermine all the principles which lead us to trust the jury system.
  22. These observations do no more than apply to the facts of the present case the considerations which led the court in R v T to reject an identical submission advanced on behalf of the respondents to the Crown's application for a trial on indictment to be conducted without a jury.
  23. "The immediate attraction of the argument is plain. If correct however it would produce a remarkable outcome. It would mean that the court's ability to discharge the jury because of jury tampering and order trial by judge alone could never be exercised if the evidence of the real and present danger were so sensitive that it could not be disclosed to the defendant. In short, the process could not apply where the actual potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health…in such cases, faced with an order for disclosure, the Crown would be left with no alternative but to discontinue the prosecution. If so the objective of the jury tampering would have succeeded…we agree that the evidence should be disclosed to the fullest extent possible, but it would be contrary to the legislative purpose to make an order for disclosure which would, in effect, bring the prosecution to an end, and enable those who had been involved in jury tampering to derail the trial… "
  24. The fourth and fifth grounds effectively criticise the judge's decision to continue with the trial, on connected grounds. Mr H submitted that as a result of his conduct of the previous cases, including all the procedural steps in those trials, the judge was possessed of information which he could not and would not be able to exclude from his own deliberations, when considering the verdict, but which the appellant had not addressed, because he was unaware of all the matters which the judge had examined in the earlier trials and which had not been included in the evidence in the instant trial. He further submitted that some of the judge's observations during the course of the previous trials, as well as his conduct of the instant trial, demonstrated that his judicial objectivity was compromised. Finally, concerns were expressed about the nature of the task the judge had set for himself, having presided over the trial and prepared a summing up, and now, as a result of his order, having to write a judgment explaining the reasons for whatever verdict he thinks appropriate.
  25. We acknowledge but disregard the concerns: that is the consequence of the additional burdens now imposed on trial judges. We are similarly unimpressed with the submission that the decision in this case was reached so close to the end of the trial (that is, after the conclusion of the summing up) that of itself, this should have led the judge to recuse himself: the short answer is that if the judge decides that the trial should continue, he must take it over at the point it has reached, however late that may be. There is no particular moment when it must be deemed inappropriate for him to do so.
  26. We have reflected on the passages in the transcripts of the trial which are relied on to indicate a departure from necessary judicial objectivity, or more robustly, judicial bias. On examination these passages demonstrate that the judge was anxious to ensure that this trial, which had been postponed for some considerable time, should proceed with all possible expedition. Thus at an earlier stage in the trial the judge wanted to see a document containing the draft admissions sought of the defence by the Crown. On another occasion he expressed himself as rather less than impressed that part of the pre-trial processes had not been completed at a much earlier stage. On 27th July, coming towards the end of the evidence for the Crown, the judge interrupted Mr H saying, "Mr H, you have said that four times now", and seeking elucidation of the relevance of the point. We can express our conclusion in short form. There were undoubtedly a number of occasions when the judge took what can reasonably be described as a robust view of his case management responsibilities, and the need to maintain the pace of the trial. Some of them were or could be seen as critical of the representatives of the defendant. It is fair to add that on occasions, on mature examination, the criticisms, actual or implied, were wrong. But, crucially, none of the criticisms were directed at the appellant himself, nor were any of the criticisms to which our attention was drawn impliedly laid at his door. Moreover, our attention was not drawn to any observation or comment in the judge's summing up which could be said to express or imply any unfairness to the appellant. In all these circumstances the judge's conduct of the trial itself does not justify the conclusion that he was disqualified from proceeding to judgment and verdict.
  27. We must finally address the issue of apparent bias. The assumption on which we have proceeded is that Mr H has drawn attention to everything which occurred in open court during any of the previous trials on which to rely in support of the submission. Plainly he could not address information put before the judge in the course of any PII applications in any of those trials. To address any potential problem the Crown put before us any material potentially prejudicial to the appellant which had been seen by Judge X in all the previous trials under PII conditions. We were assured that we were shown the "entirety" of the PII material seen by the judge during the course of all the earlier trials which might have had any bearing on the appellant's case.
  28. Mr H's argument began with an analysis of the links between the various trials over which Judge X had presided. The first trial involved three men, ND, BT, and the appellant. They were said to be party to the very substantial conspiracy to cheat the Revenue summarised in paragraph 2 of this judgment. They were all acquitted of the conspiracy charge, although T was later convicted of money laundering. The appellant was also acquitted of one count of money laundering, and the jury failed to agree on the other money laundering counts. Judge X knew that the allegation in the first trial was that the appellant had been the right hand man of ND and BT, closely involved in their alleged conspiracy. He had heard a considerable body of evidence relied on by the Crown to establish the link between the appellant and ND. Considerable importance was attached to telephone communications between them to establish that the appellant was involved in the fraud. However in the course of the retrial not all this evidence was adduced, and the evidence that was produced, enabled the defence to comment on its paucity. Mr H queried whether the judge could overlook evidence he had already heard. Taken on its own, we have no doubt that, as with any experienced judge, he could.
  29. More significantly, Count 1 on the indictment in the present trial related to money laundering set up in a fictitious name by a corrupt bank manager, CH. One of the allegations in the present trial was that the appellant had indeed met with him at Spearmint Rhino, but the case advanced on the appellant's behalf was that that meeting had nothing to do with opening any bank account. CH was convicted at an earlier trial. When sentencing him the judge observed that he had abused his position of trust "to assist the main participants" to open the fictitious bank account, and that he had involved himself in the "seedy environment of the Spearmint Rhino Club, and no doubt affected by the artificial glamour of that place and your meetings with the likes of ND and the appellant, you allowed them to suborn you into assisting them to open an account… the court will accept… that you were probably targeted and ensnared by ND, but having observed you giving evidence the court is satisfied that you were quite willing to be so ensnared, despite your professional position".
  30. Count 3 related to events encompassed in an earlier trial involving DD. A fictitious account was opened by him and operated with BT. The account was used to launder substantial sums of money. The Crown's case against DD at DD's trial was that he had been laundering money for ND, BT and the appellant, whereas DD's defence had been that he had been laundering money for a man called Ch, who, in turn, was alleged by the prosecution to be a fictitious individual.
  31. Following DD's conviction, on 16 September 2005, the judge observed that DD had been brought into "this activity as a result of being introduced to BT, who was still to be tried. BT is a man with a long and serious criminal record of dishonesty. However, Mr DD did not deal, he says, with Mr BT, but it was Mr BT who introduced him to a man called Ch and then he had dealings with a man called De. These two were undoubtedly associates of the appellant".
  32. Count 4 involved an allegation of money laundering in the context of an account opened by MM. It was alleged that the go-between between him and the defendant was LM. In the course of his summing up of the trial involving DD and LM the judge said that the Crown asked the jury to infer that a telephone call made within a very short time when the account started to be operated between LM and the appellant was, as it were, "reporting back to boss", that is, LM reporting to his boss.
  33. That observation was, of course, part of the judge's summary of the Crown's case against LM. However there was an earlier reference to it in the trial of DS when the Crown's case was that a schedule prepared to reflect telephone contact between the defendants and the appellant led to the inference "that it was [the appellant] who was responsible day-to-day for the organisation of the laundering end of the operation…it is [the appellant] who is in telephone contact principally with DC and, to a lesser extent, with BT. Those three, BT, DC and DD are the three launderers. [The appellant] also maintains extensive telephone contact with LM who is himself a contact for MM". The reference to C brings into consideration count 2 of the present indictment which alleged that an account was opened by him in the name of MD and that he was indeed a close associate of the appellant.
  34. There is ample evidence that in previous trials the judge had been given information or heard the Crown assert that the appellant was crucial to the criminal activities of the defendants then on trial, and that in the present trial, the appellant was defending himself against allegations of criminal involvement with others who were, as the judge knew but the jury did not, already convicted of criminal activity at the heart of which the Crown alleged the appellant would be found, and to whose involvement with the appellant (in at least two cases) he referred expressly in the appellant's absence during his sentencing remarks.
  35. The judge was also aware of the links between the appellant and some of those involved in trials to which no specific reference was made in the four counts in the present indictment. One example involved a man called Ca, a bookmaker, whose plea of guilty to money laundering would not have been admissible in the current trial, and with whom the appellant had had a long association. Following a ruling by the judge in relation to admissibility, the jury in the current trial knew no more than that the appellant was in touch with his bookmaker – and would therefore have drawn such limited inferences as might have seemed relevant on that basis - whereas the judge knew that the appellant's bookmaker was a convicted money launderer - in the present context, obviously a fact of much greater potential significance.
  36. In the opening note prepared by the Crown for the current trial, and seen by the judge, but not the jury, it was asserted that the appellant was a career criminal who had lived off the proceeds of crime. That, as we shall see, was not the only occasion when the judge was made aware of that contention. Similarly, the judge knew, as the jury did not, that the appellant had been convicted of two counts of conspiracy to defraud in 1995. The fraud related to the cloning of credit cards. The sentence had been 5 years' imprisonment. The judge also knew of allegations (which in the end were unsubstantiated) that the jury in the first trial had been tampered with.
  37. We have been supplied with a report dated 11 May 2007 provided for the judge which has been disclosed to Mr H. None of it, of course, constituted evidence in the present trial. Referring to the appellant the observations include:
  38. The nature of the difficulties is further illustrated in relation to the present trial, when in the context of a bail hearing in October 2008, it was said to the judge in terms that the appellant was "a man of substantial means but those are means that the Crown has never been able to trace." The appellant in interview on 8th April 2005 stated that he was a professional gambler. He said that £200,000 was not a large amount of money to him. On previous occasions he spoke in interview about winning and losing £800,000 and £1million here, £1million there. Yet the Crown throughout their financial investigations were unable to pin any substantial assets in the appellant's direction. "We can't find property in his name. We can't find bank accounts with any substantial amounts of money. We submit that that is all evidence of someone who lives a shadowy lifestyle who has access to large amounts of money if he is given his passport and he goes to India. It is somewhere it is unlikely we would be able to extradite him from…" The judge said that he had heard the appellant give evidence. That was a slip of memory, because the appellant had not given evidence at the first trial, nor indeed at the current trial, although he was, from time to time, prone to speak out in the course of proceedings. Indeed he did so on this occasion commenting "Can I assist you on this Your Honour. I (inaudible) remember it's my nephew that came to put the £200,000 and you said its chicken feed. [KS] had the best of…" Although the tape is then inaudible it is common ground that the judge had gone on to say, £35 million. In short he was saying that, on any view, KS was exceptionally and remarkably wealthy.
  39. On 29 July 2009, at the close of the evidence for the Crown, it was submitted to the judge that there was no case for the appellant to answer. In the course of the submissions addressing the nature of the appellant's presence at important occasions, and the judge commented "…are they waiting for [the appellant]? Is he the boss? I mean, boss is my words. I do not remember how Mr K put it. He said if you look at the video it is clear. But, I mean, whether it is right or wrong is not for me to say. It is for the jury to interpret". Although that was indeed the judge's word in the course of the trial, Mr H points out that that was the description the judge applied to the appellant in the course of his summing up in the trial of, among others, LM and DD.
  40. In general terms, we should normally be prepared to accept the judge's own assessment whether he would be able to reach a true verdict in accordance with the actual evidence called before the jury. The striking feature of all this material is not that the judge would be unable to provide a verdict which would be exclusively based on the evidence called before the jury, nor that he would be unable to ignore material which had come to his attention in the course of the earlier trials. The critical question was identified by the judge himself when hearing argument from the Crown that he should proceed to a reasoned judgment and verdict in this case.
  41. "The point" said Judge X "is the perception", and he inquired whether he was to disregard the authorities relating to the principles on which judges should recuse themselves on "perception" grounds. Later in the argument he returned to the point saying, "I am still troubled about one area which I have averred to, and which you touched on a bit earlier. I do not know whether you want to either give it any more thought or make any further submissions (about whether) a judge (should) continue to try a case where there is a perception of bias?" He queried again whether as a matter of principle such an issue could arise. The Crown responded that although the matter should be considered, it was a factor which carried "relatively little weight" on the basis that the relevant section in the 2003 Act did not address the issue of perception. The judge's attention was focussed on the decision in R v T in which trial judges were strongly urged that
  42. "Save in unusual circumstances the judge, faced with this problem, should order not only the discharge of the jury, but he should continue the trial",

    and to the further observation that the fact that the judge "has been invited to consider material covered by PII principles, whether during the trial, or in the course of considering the application, should not normally lead to self disqualification".

  43. The concerns expressed by the judge during the course of the argument suggest that he was clearly aware of the danger that there might indeed be what we shall summarise as a perception problem if he were to continue with the trial as a judge alone.
  44. We see no reason for resiling and we do not resile from the observations in R v T. Indeed we repeat that in circumstances like these the trial should proceed to a conclusion, however, in that case, it was unnecessary to address the perception issue which was troubling Judge X. And the court did not do so because the principles are elementary. In this jurisdiction, as this case itself demonstrates, we cannot countenance, let alone permit the verdicts in a criminal trial to be returned by a jury which is actually or apparently biased. An identical principle must apply whenever the verdict is to be returned by a judge sitting on his own. We shall not recite the development of the jurisprudence, nor endeavour to put any gloss on the principles. We have examined a well known line of authorities, beginning with R v Gough [1993] AC 646, Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (2) [2000] 1 AC 119, Locabail (UK) Limited v Bayfield Properties Ltd [2000] QB 451, Re Medicaments and Related Classes of Goods (2) [2001] 1 WLR 700 and Porter v Magill [2002] 2 AC 357. It is clear that the absence of judicial bias does not answer the separate question whether an informed objective bystander might legitimately conclude that such bias is a realistic possibility.
  45. Nothing in the statutory framework, and equally, none of the observations in R v T cast doubt on or undermine, or could be thought to cast doubt on or undermine this principle. Section 46 of the 2003 Act does not directly address the perception point. It does require that before the trial can continue without a jury the order must not be unfair to the defendant. That may well be sufficient, on its own, to address the perception issue. But, in any event, it is inconceivable that the consequence of discharging a jury on the ground that it has been contaminated could result in a trial by judge alone which was inconsistent with the well established principles relating to the necessary absence of bias or apparent bias in the tribunal.
  46. In the course of this judgment we have provided a narrative account of some of the salient features which bear on the perception issue. This is an unusual and indeed an extreme case. The judge was personally involved in a vast number of trials which were directly concerned with a fraud in which the appellant was alleged to have been a central figure. By the time this tenth trial was coming to an end he was inevitably aware of a vast body of information affecting their client of which the defence would have been ignorant and which therefore would not have been addressed in the present trial. Everyone of those identified in the counts in the present indictment were said to have been jointly involved with the appellant. Each of them was convicted in trials over which Judge X had presided. Some of his observations about the appellant himself in the course of his sentencing remarks were specific to and critical of the appellant. None of these considerations, even taken together, prevented him acting as the trial judge when the jury was vested with the responsibility for the verdict. However taking them together, and examining them in their overall context, we have concluded that the objective bystander, considering the question which arose when the judge himself became responsible for the verdict, would be left with precisely the same concerns articulated by the judge in the course of the argument and which, in the result, he was persuaded with some hesitation to set aside.
  47. For these reasons this appeal will be allowed. We shall invite counsel to make written submissions as to the appropriate or consequential orders within 14 days.
  48. By way of footnote, the layout of Y Crown Court, and the opportunities for smoking available for those who wish to smoke, are unsatisfactory. They must be reconsidered, at any rate in relation to trials lasting more than a day or two, so as to avoid the inevitable risk of jury contamination where jurors and members of the public congregate together to have a smoke.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2377.html