Twomey & Ors, R. v

On 6^th February 2004, an armed robbery occurred at warehouse premises belonging to Menzies Limited at Heathrow Airport. The objective was a vast amount of currency. In the result, although they were far from trivial, the proceeds were rather under one fifth of the anticipated haul from the crime.

Just over six years later, on 31^st March 2010 at the Central Criminal Court before Treacy J, sitting without a jury in accordance with section 44 of the Criminal Justice Act 2003 (the 2003 Act), these appellants were convicted of robbery (count 3) and possession of a firearm with intent to commit robbery (count 5). Blake, who fired a gun at an employee of Menzies, was also convicted of attempting to cause grievous bodily harm with intent (count 1) and possession of a firearm with intent to endanger life (count 2). The judge discharged himself from giving a verdict on count 4 (conspiracy to rob), which was alternative to count 3. Finally he acquitted Hibberd of counts 6-18 on the basis that the evidence was insufficient to found a sure conviction.

Twomey was sentenced to 20½ years’ imprisonment on count 3 and 7 years’ imprisonment to run concurrently on count 5: Blake was sentenced on counts 2, 3 and 5 to life imprisonment in accordance with statutory provisions, with a minimum specified term of 10 years 9 months’ on count 3, 5½ years’ on count 2, 3½ years’ on count 5 together with a determinate sentence of 11 years’ imprisonment on count 1: Hibberd was sentenced to 17½ years’ imprisonment on count 3 and 7 years’ imprisonment concurrent on count 5: and Cameron was sentenced to 15 years’ imprisonment on count 3 and 7 years’ imprisonment currently on count 5. In each case appropriate directions were given under section 240 of the 2003 Act.

This remains the only case in this jurisdiction where trial on indictment by judge alone has taken place to nullify the risk of “jury tampering” or jury nobbling. For the time being, although the statutory provisions relating to trial on indictment by judge alone have been in force for some years, this case is unique, and we must hope that it will remain so. The proper operation of the criminal justice system requires that the verdicts returned by a jury, as with any other court, must be true verdicts in accordance with the evidence. Verdicts returned by a jury which has been nobbled cannot represent true verdicts. If criminals choose to subvert or attempt to subvert the process of trial by jury they have no justified complaint if they are deprived of it. That is the consequence they face. The certain way of avoiding trials by judge alone where trial by jury would otherwise be available is for jury tampering to stop: it is as stark and simple as that.

Notwithstanding that trial by jury has been forfeited, the requirement that trial by judge alone should be fair is undiminished. All that has changed is the constitution of the tribunal. There is nothing in the common law, or in any of the provisions of the European Convention of Human Rights which suggests that trial by judge alone must, of itself, be deemed to be unfair, or that where an order for trial by judge alone is made, the subsequent trial offends the principle that every defendant facing any criminal charge is entitled to a fair trial. And it has not been suggested in argument that an order for trial by judge alone is or should be deemed to be an unfair trial. The fairness of any trial by judge alone is, of course, subject to review in this court, and if on examination it appears that the trial judge had acted unfairly, or in breach of the ordinary rules which govern judicial conduct, this court would have no hesitation in quashing any subsequent conviction. As it is, as we emphasise, no suggestion of unfairness has been directed at Treacy J’s conduct of this trial, and indeed the verdicts were returned after a trial which was conducted with conspicuous fairness.

The main issues canvassed in this appeal were not directed to the trial itself. What was said to be engaged and the basis of the only grounds of appeal which necessitate any legal analysis, arose from the order that this trial should be tried by judge alone, without a jury. The main concerns expressed on behalf of the appellants are therefore not directed to the fairness of the trial which culminated in their convictions, or, save for trivial complaints, the safety of the convictions, but to the asserted unfairness of the process by which they were deprived of what would have been their right to trial by jury if that right had not been forfeited. The issue at trial was whether the individual defendant participated in the robbery at Menzies, not whether he was involved in any attempt to pervert the course of justice by jury tampering. The Crown therefore did not rely on any evidence or material relating to jury tampering against any of the defendants in order to seek to prove their guilt of the counts alleged in the indictment. Viewed in this way, the issue in this appeal is a very narrow one.

At the conclusion of the evidence the judge reserved his decision, and in due course on 31^st March 2010 he provided a meticulous detailed judgment explaining the reasons for all his verdicts. Although some criticisms are made of his reasoning in relation to the evidence, for the reasons which will appear later, all are bereft of substance. Any attempt to paraphrase the judgment would diminish its authority. It speaks for itself. We do not need to and therefore shall not repeat its contents. It will however be annexed to this judgment and anyone seeking to understand the facts which resulted in these convictions, and the reasons for them, should refer to it.

We are grateful to counsel for the appellants for co-operating with the sensible management of these appeals, and in particularly by reducing a large number of grounds of appeal individually advanced by the appellants to a compendious group of six grounds. They are:

Counsel for the appellants helpfully agreed between themselves which of them should argue the different grounds. All four appellants relied on the first and second grounds. The third ground was advanced on behalf of Blake, Cameron and Hibberd, the fourth ground by Twomey and Cameron, supported by Hibberd, and the fifth and sixth ground by Cameron alone. In addition to their appeals against conviction, Hibberd and Cameron appealed against sentence.

The chequered history of this case, and the reasons why this court ordered that that the trial should be a trial without a jury is set out in the judgment of the court in R v T and others [2009] EWCA Crim 1035. Nevertheless it is essential to the understanding of the submissions to repeat some of its outstanding features.

In March 2005 the trial began before His Honour Judge Roberts QC at the Central Criminal Court of Twomey and six other defendants charged with conspiracy to rob Menzies Limited. Within a short time Twomey became unwell and the jury was discharged from returning a verdict against him. At the end of the trial two of the remaining defendants were acquitted altogether, but in relation to four of them, the jury was unable to agree and a re-trial was ordered.

In the course of this first trial, an application by counsel for one of the other defendants required the judge to investigate a substantial volume of material under PII conditions. The material was inadmissible as evidence and Judge Roberts considered some of that material to be highly prejudicial to Twomey.

The knowledge of the contents of this material did not present Judge Roberts with any difficulty when the trial began of the present charges against Twomey, Blake and Hibberd at the Central Criminal Court in June 2007. That was because, although he was the trial judge, the jury was expected to return whatever verdict seemed appropriate on the evidence. This trial lasted for more than 6 months. By the date of the summing up the jury had been reduced to ten members. After a retirement lasting 2 days, the trial judge was notified by the jury that they had reached “on all defendants on all counts, a very strong majority decision”. The judge said that he would not give a majority verdict and take verdicts at that stage. However he added that to assist the defence considering what submissions should be made about the timing of the majority direction, he would indicate that the verdicts were likely to be adverse to them. Nine jurors returned to court after the Bank Holiday weekend, but the tenth juror refused to return to court. He was discharged. With nine jurors left, a majority verdict could not be taken. The jury was unable to reach unanimous verdicts. A re-trial was ordered.

In the meantime Cameron was arrested, and the second re-trial of these appellants began on 30th June 2008, again at the Central Criminal Court, again before Judge Roberts. Many months later, on 5^th December, under PII conditions, the prosecution informed the judge that they were in possession of material which showed that improper approaches were being made to two members of the jury.

On 8th December the judge informed the parties that he was minded to discharge the jury, informing them of the grounds (jury tampering) and offering them an opportunity to make representations. The amount of information which he could give about the grounds for discharging the jury was, as he put it in his open judgment, “necessarily limited”. He considered the representations, but concluded that no alternative to the discharge of the jury was available. It is perhaps worth emphasising that we do not anticipate that any judge sitting in the Crown Court, let alone a judge of the experience and high reputation of Judge Roberts, would have contemplated the discharge of a jury after such a lengthy trial, unless the material compelled him to that conclusion. Accordingly on 9th December the jury was discharged.

Judge Roberts then reflected whether he should make an order under section 46(3) of the 2003 Act that the trial should continue without a jury, in other words, that it should proceed before him as a trial by judge alone. He addressed a complaint made on behalf of the defendants that they were not being allowed to see the material on which his conclusion that jury tampering had taken place at the aborted trial was based. Accordingly it was said that they were unable to address the question whether a “real and present” danger of jury tampering existed. Judge Roberts expressed sympathy with the submission, but said in express terms that “the law does not permit me to disclose the detail of the information upon which I acted in discharging the jury”. He repeated his entire satisfaction that a determined attempt had been made at jury tampering, and added that even if counsel had been allowed to see the material for themselves, there was no prospect that any consequent submissions could have altered his conclusion.

Judge Roberts reminded himself of the material relating to Twomey which had been shown to him in the course of the 2005 trial. He concluded that his knowledge of that material would make it unfair for him to try Twomey without a jury. As Judge Roberts put it, he would have been placed in an invidious position if he were required to return a verdict against Twomey, and the resulting unfairness would have a “knock-on effect” on Blake, Cameron and Hibberd whose cases, as the facts show, were inextricably linked to Twomey’s case.

Judge Roberts expressed himself in unequivocal terms that a “serious attempt at jury tampering” had taken place during the trial, and that there was “clearly a real and present danger” of the same thing happening again. Some of the defendants were “clearly ruthless and determined criminals, and all of them are facing very long prison sentences if they are convicted”. The appellants can never have been in doubt either that the discharge of the jury or that the possibility of trial without a jury arose from a real and present danger of jury tampering.

Judge Roberts was persuaded that the question whether the next re-trial should be trial by judge and jury or trial by judge alone should be considered by the presiding judge of the circuit, and the case was referred to Calvert-Smith J.

Calvert-Smith J ex-parte under PII conditions examined the material put before Judge Roberts with the assistance of counsel for the Crown. The judge examined the open and closed court judgments, and heard evidence from police officers about possible jury protection. He invited submissions in open court from defence counsel. He conducted a careful investigation into the problems faced by counsel for the defendants in dealing with the application when none of them had been informed directly of the evidence upon which the conclusion that jury tampering had taken place was based. He noted that the individual defendants did not know how the prosecution came to know of the events which generated the applications and acknowledged that they were also ignorant which if any of them was personally involved in the allegation.

This provided the context in which Calvert-Smith J examined the reasons for withholding the information, and concluded that the public interest demanded that it should not be disclosed. He indicated that cases in which this course might be appropriate would be likely to be cases where the danger of jury tampering was at its “most extreme”. He added that if he were to conclude that the defendants should be informed of the matters of which they were ignorant then, notwithstanding the public interest that demanded that the information should be withheld, the entire object of the provisions intended to address jury tampering would be defeated.

Calvert-Smith J was “as sure as” Judge Roberts that there was a real and present danger that a future jury would be tampered with, and that the danger would persist from the moment when any new trial before a jury started until its conclusion. He then examined the question whether the interests of justice required a non-jury trial, and having reflected on the issues he decided that the necessary protection against jury tampering could be provided. He envisaged a “package” of measures to provide jury protection which would be sufficient to reduce the risks of tampering to an acceptable level, so that it would not be necessary for the trial to be conducted without a jury.

The prosecution appealed. In this court, as then constituted, we examined the entire evidential basis for the Crown’s application, including the material drawn to our attention under PII conditions, as well as the closed and open judgments of both Judge Roberts and Calvert-Smith J. In addition, oral testimony was given to the court by an Assistant Commissioner and a Detective Superintendent of the Metropolitan Police. Like Judge Roberts and Calvert-Smith J we did not read any material or consider any evidence or information from any officer involved in the investigation of these offences.

On 5^th June 2009, in accordance with the provisions of ss 44-48 of the 2003 Act, and after no fewer than three very protracted trials with a jury, presided over by Judge Roberts, this court ordered that the fourth trial should be conducted by a judge alone without a jury. It confirmed the conclusion of Judge Roberts and Calvert-Smith J that the evidence established to the criminal standard that there was a real and present danger to the integrity of a future jury trial and that thedanger of jury tampering and subversion of the process of trial by jury was “very significant”. The protective measures envisaged by Calvert-Smith J were inadequate in the circumstances to obviate these risks, and in any event, the consequent impact on individual jurors of such a package would be unfair. Therefore the appeal was allowed and it was ordered that the case should proceed as a trial by judge alone.

After the judgment had been handed down, the judgments of the House of Lords in AF (No 3) became available. We were not asked to re-open the appeal, but rather invited to certify that a point of law of general public importance was involved in our decision, on the basis that in the light of the decision of AF (No3), our decision might “be incorrect”. We declined to do so. In reality the present appeal provides us with an opportunity fully to examine the possible impact of AF (No3) on the decision of this court in June 2009.

Treacy J was invited to act as the trial judge and to conduct the trial on his own.Three applications relevant to the present appeal were made to him.

On the basis of s31 (11) of the Criminal Procedure and Investigations Act 1996, the main submission to Treacy J was that the order for trial by judge alone, based as it was on material drawn to the attention of the court in accordance with well known public interest immunity provisions, had been overtaken and, in effect vitiated by the decision in AF (No 3). In essence it was argued before him, in submissions repeated before us, that the order for trial by judge alone contravened elementary principles of fairness on the basis that although the reason for making the order was clear, the defendants were not provided with information which enabled them to challenge the material on which the conclusion relating to jury tampering was based. The defendants were deprived of any opportunity to see even the core irreducible material on the basis of which they were deprived of the right to trial by jury. Mr John Aspinall QC submitted that the decision of this court to order trial by judge alone on the basis that it was satisfied that the statutory conditions permitting and justifying an order for trial by judge alone were established at hearings from which the defendants and their advisers were excluded was permissible within the ambit of the decision of the House of Lords in Secretary of State for the Home Department v M, B and AF[2008] AC 440 on the basis that even the fullest disclosure could have made no difference to the outcome. However Treacy J was bound not by the order of this court, but in consequence of the subsequent decision of the House of Lords in AF (No3) he should set aside the order for trial by judge alone on the basis that the procedure which had culminated in that order was not or was not sufficiently compliant with the principle identified in AF (No3). The effect of AF (No 3) was that the material on which the order was based should have been made available to the defendants, that Treacy J should have examined it, and heard argument from the defendants about it, and then set aside the order for trial by judge alone. As he rejected the submission, the trial which took place was a nullity and as such, even if the court were to conclude that the convictions are safe, they should nevertheless be quashed.

Further submissions in the context of PII considerations, which it will be seen were mutually contradictory, were advanced to Treacy J and his rulings on them are also criticised. First, it was suggested that he may have examined material under PII conditions which may have created a bias in him against the appellants, or in circumstances which would leave a reasonable bystander with at least the perception that he may have been improperly biased against them. By contrast it was argued, second, that the judge was wrong to reject the submission that he should have arranged for the examination of the material which led this court, as well as all the material before Judge Roberts and Calvert-Smith J to the conclusion that the risk of tampering was established, in order that the identity of those involved in jury tampering should be discovered.

We must therefore address the decision in AF (No3) and its possible impact on these convictions. This litigationwas concerned with non-derogating control orders which, in accordance with the legislative framework, involved significant restrictions on the liberty of the subjects of the orders. Without evidence that the Secretary of State entertained reasonable grounds for suspecting that they were involved in terrorist activity, and that such orders were necessary for the protection of the public from a risk of terrorism, they could not be made. The court considering whether to make the orders examined material which was not disclosed to their intended subjects, and the order were substantially based on undisclosed material deployed before and utilised by the court. The problem therefore was that, notwithstanding that control orders involved a potential and significant interference with the liberty of their intended subjects, they themselves and the special advocates lacked any means of addressing and challenging, the material on which the orders for the deprivation of their liberty was based.

In summary therefore, in AF (No3) a non-derogating control order under the Prevention of Terrorism Act 2005 which involved significant restrictions on liberty was made after the judge had considered and relied on “closed” material which was not seen either by AF himself or his legal advisers, and which therefore neither he nor they could confront or address. This was procedurally unfair, and the consequent order was flawed and should be quashed.

The effect of AF (No3) in the present context was, so it was argued, to change the law as understood in M, B, and AF. The fact that disclosure could have made no difference to the eventual outcome was irrelevant. The disclosure material relating to jury tampering or sufficient of the material to enable the defendants to engage with it was an entitlement to a process which might culminate in the deprivation of a right. The process by which the appellants were deprived of their right to trial by jury was flawed for the reasons which undermined the fairness of the control orders made in AF (No3).

Attractively advanced as it was, this submission failed to grapple with the reality that the question whether the trial of the defendants should proceed as a trial by judge and jury or trial by judge alone was concerned exclusively with the mode of trial. It was not itself a criminal proceeding in the sense that the exercise of the jurisdiction to order a trial on indictment by judge alone might create or have the potential to create adverse consequences of the kind involved in control orders. No restriction on any individual defendant’s liberty, nor any other form of punishment, nor any sanction could follow from an order for trial by judge alone. Equally the order did not and could not constitute any form of interference with his property rights. The “right” engaged in the present appeal is confined to the mode of trial, not its fairness.

The jurisdiction to order trial by judge alone is subject to clear statutory conditions. If they are satisfied, but only if they are satisfied, the result may be a trial without a jury. Trial by jury, when available, is forfeited where:

“Section 44…

(4)…there is evidence of a real and present danger that jury tampering will take place.

(5)

…notwithstanding any steps (including the provision of police protection) 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.”

Examples of cases where evidence of such a danger are identified may be found in sub-section (6), but as the statute makes clear, theses are examples only, and are neither definitive nor comprehensive.

Trial by jury is described as a “right” in order to emphasise the importance that is attached to it, but it is a right which can be and from time to time is circumscribed by statute. This is most clearly demonstrated by statutory provisions by which, from time to time, trials for criminal offences which could formerly be tried on indictment by judge and jury should be tried summarily. Statutory provisions permit a number of judge only trials to be heard on indictment (see section 17 of the Domestic Violence, Crime and Victims Act 2004, (the trial of sample counts) and section 43 of the Act itself, currently enacted but not yet in force, in relation to fraud trials. Moreover this process is not new. In Northern Ireland, a community which values trial by jury no less than it is valued in England and Wales, the Northern Ireland (Emergency Provisions Act) 1973 came into effect in August 1973, and provided that trial on indictment of a scheduled offence must be conducted by a court without a jury. There was no discretion to order trial by judge and jury. Scheduled offences included the most serious offences in the calendar including murder and manslaughter, wounding with intent, causing explosions and numerous offences relating to the possession and carrying of firearms. The Act was revised and amended from time to time, but what became described as Diplock Courts were not finally abolished until July 2007 by the Justice and Security (Northern Ireland) Act 2007. In short the right to trial by jury may be created, extended, amended, reduced or abolished by statute. It is not a right protected by the European Convention of Human Rights, nor does its removal involve interference with the rights to liberty or property or fair process protected both at common law or by the Convention.

The statutory arrangements which now permit trial on indictment by judge alone in cases of jury tampering addressed longstanding concerns about the threat to our system of trial by jury by those who were willing to subvert it. Lord Bingham of Cornhill CJ in R v Comerford [1998] 1 Cr App R 235 addressed grounds of appeal based on the procedures adopted and orders made in relation to a trial by jury. Lord Bingham began his reasoning by referring to the truism:

“…that the jury is the lynch-pin of trial on indictment. The proper functioning of the jury is crucial to the fair and effective conduct of the trial. To that end statute regulates the composition of juries, the selection of jurors and the challenging of jurors. To that end also, almost infinite care is taken in directing the jury on the proper approach to their task…but all these rules and procedures are rendered of little effect if the integrity of an individual juror, and thus of the jury as a whole, is compromised. Such a compromise occurs when any juror, whether because of intimidation, bribery or any other reason, dishonours or becomes liable to dishonour his or her oath as a juror by allowing anything to undermine or qualify the juror’s duty to give a true verdict according to the evidence.”

He referred to efforts to influence the verdict of the jury by unlawful means as “jury nobbling” and he identified the solution eventually adopted by Parliament in the provisions which we are currently concerned.

“Where an attempt to nobble a jury is apprehended, one possible response would be to dispense with a jury altogether … “

In Comerford Lord Bingham also addressed some of the procedural problems likely to arise where an application was made for jury protection, without the prosecution being required to give reasons to the defence or call evidence in the defendant’s presence, or that of his lawyers, in support of the application. In that case, after the trial the defence were informed that there was apparently compelling evidence that an attempt had been made or would have been made to nobble the jury which the judge had discharged. The only further information provided to the defence was that, while the jury at the first trial was being sworn, an individual in the public gallery was seen to have been making a written note of the names. It was therefore argued that the order for jury protection, and in particular an order made without requiring the prosecution to give reasons “which would enable the defence to present reasoned argument and without calling evidence which the defence could test in cross examination” was wrong.

Lord Bingham was plainly concerned to ensure that “all possible information should be disclosed to the defence, and that all exchanges with the judge should so far as possible take place openly in the presence of the defendant or his representative” and that any ex parte communications between the Crown and the judge “should be kept to a minimum”. Nevertheless he recorded that “there were further disclosures, made to the judge on oath, and known to us, which remained secret and unknown to the defence”. He did not regard these processes as inappropriate or unfair. After the private material was examined, the court was satisfied that there was reliable evidence which obliged the judge to discharge the first jury and justified the decision to order a high level of protection for a second jury. “…the judge was presented with apparently reliable sworn evidence which obliged him to discharge the first jury, and fully justified his discretionary decision to order a high level or protection for the fresh jury when in empanelled. Even if the defence had been told a little more than they were, the judge would have been bound to make these orders, and the defence must surely have inferred that the first jury were thought likely to have been nobbled, even if they knew nothing of the grounds for such belief.” He continued:

“While we can understand the concern of the appellant and his advisers, there is nothing in the procedure adopted in relation to jury protection which causes us to consider this conviction unsafe”.

Comerford, as we have indicated, did not address the legislative provisions enacted in ss 44-48 of the 2003 Act. Nevertheless it helpfully illuminates the principle that, although there could be no compromise with the fairness of any trial which may follow precautions designed to defeat actual or attempted jury nobbling, it was not a pre-condition to the fairness of the trial that the procedural steps (which satisfied the judge that the first jury should be discharged and that protective measures should be adopted for the second jury) should proceed on the basis of material which was disclosed to the defendant. Although Lord Bingham made plain the distaste for decisions made on the basis of private hearings, his judgment acknowledged that on occasions this was unavoidable, and the safety of Comerford’s subsequent conviction did not, on this ground, fall to be questioned.

Lord Bingham returned to the problem of private hearings and non-disclosure in R v H and C [2004] 2CAR 10 at 179, where he gave the judgment of the Committee of the House of Lords.

In the context of a preparatory hearing at the Crown Court, H sought disclosure from the Crown of documents relevant to his contention that the proceedings against him constituted both an abuse of process because of executive misconduct or illegality by the officer responsible for the investigation, and a reason for the court to exclude otherwise admissible evidence on the basis of the well known discretion vested by section 78 of the Police and Criminal Evidence Act 1984. C made a similar application on the basis of section 78, but sought disclosure on the further basis that the undisclosed material would support an application to dismiss the charge under section 52 (6) of the Crime and Disorder Act 1998.

The House of Lords re-emphasised in unequivocal terms that it was a “cardinal and over-riding requirement” that if a person charged with a criminal offence could not be tried fairly, he should not be tried at all. Nevertheless the right to a fair trial was exercised within the framework of the administration of criminal law, and the “triangulation of interests” identified by Lord Steyn in Attorney General’s Reference (No 3 of 1999) [2001] 2AC 91 at 118, “taking into account the position of the accused, the victim and his or her family, and the public”. The Committee underlined the need for disclosure of material held by the prosecution which weakened its own case or strengthened that of the defendant, recognising that if the material which the prosecution sought to withhold from disclosure did not weaken the prosecution case or strengthen that of the defendant, there was no requirement to disclose it at all. In some situations non-disclosure on the basis of public interest immunity principles was justified and the Committee identified a series of principles to be applied when this issue arose.

There principles are now well understood, and form part of the day to day administration of criminal justice.

The question is whether these well established principles, which acknowledge that on occasions disclosure may not be possible, must be reassessed in the light of AF (No3). This case was concerned with the restriction of liberty in the form of a control order against individuals suspected of terrorism or links with terrorism. Doing the best we can to encapsulate the principle identified in AF (No3) in a few words, the process or proceedings which result in an order restricting liberty must be fair: if they are not, the order itself cannot have been made fairly. AF (No3) reminded us, if reminder were needed, that the paramount consideration, overriding all others, is that the trial, whether before judge alone, or judge and jury, or for that matter magistrates or courts martial, or indeed before any tribunal vested with jurisdiction to try criminal cases must be fair. In our judgment however AF (No 3) was not directed to and we cannot find any hint that it was intended to impact on pre-trial criminal processes concerned with the determination of the mode of trial unless, perhaps, the proposed mode of trial was itself unfair. Equally it had no impact on the principles relating to public interest immunity and disclosure in criminal cases addressed in R v H and C in the context of applications much closer to the trial process itself (including, as they did, an assertion that the proposed trial was an abuse of the process of the court) than the restricted question of the mode of trial. In reality, in the present case, the process of deciding whether the guilt of the appellants was established was entirely distinct from the question of how the tribunal responsible for making that decision was constituted.

Carried to its logical conclusion, Mr Aspinall’s submission on the basis of AF (No3) is that whatever the circumstances, without disclosure to the defendant of the irreducible core minimum of material on which it may be based, an order for trial on indictment by judge alone on the basis of jury tampering is prohibited. His submission did not, as we understood it, assert that the same principle must apply to the question whether the jury trying the case should be discharged or provided with protection. In other words, for that purpose, the authority of Comerford is undiminished. Whether or not we have correctly understood his submission on this point, at the next stage, following the enactment of ss 44-48 of the 2003 Act, he argues that AF (No3) is undoubtedly engaged. The submission overlooks that on some occasions, the disclosure of material may either contravene statutory prohibitions on disclosure (as in relation to sections 17 and 18 of RIPA), or give rise to unacceptable risks to the safety of others or to the integrity of the investigative process. The consequences of Mr Aspinall’s submission, if it is correct, is that unless the court orders disclosure in accordance with his contention, the defendants must continue to be entitled to trial by jury even when that the court is satisfied to the requisite criminal standard that there is a real and present and unavoidable danger of “jury nobbling”. That would indeed be an unfair trial. The court could not countenance that the trial process should be so abused. The alternative course would be for the prosecution to discontinue the proceedings. That, too, would represent a triumph for jury nobbling. The provisions designed to avoid jury nobbling in cases involving professional crime, and violent professional crime in particular, would be emasculated. We need not repeat the observations on this topic to be found in the earlier judgment of this court in R v T.

In our judgment the decision and the reasoning in AF (No3) do not have this effect. The principles identified in R v H and C continue to apply to the issue of jury tampering and possible trial by judge alone. In the present context however, the only question remaining is whether the appellant’s convictions were safely reached by a properly constituted tribunal, vested with jurisdiction to try the allegations against them. The trial before judge alone was securely based on statutory provisions designed to protect the jury system from the danger of subversion, and the disapplication of the principle of trial by jury in accordance with statute produced no diminution in the fairness of the trial or indeed the safety of the convictions. Treacy J was right to reject the submission that he should order trial by jury. In the result the appellants received a fair trial before a court vested with appropriate jurisdiction. The proceedings were not a nullity.

These grounds of appeals are linked but contradictory. The link is that the submissions arise in the context of public interest immunity considerations. The first complaint is based on the proposition that the judge examined material under public interest immunity conditions which were undisclosed to the defence and may have created a bias in the judge against them, or would leave a reasonable bystander with a perception that he may have been biased against them. By contrast the second complaint is that the judge was wrong to reject the submission that he should examine the material before Judge Roberts and Calvert-Smith J and this court which had led to the conclusion that the risk of tampering was established. He should, it is argued, have been prepared to arrange for the material to be examined by a disclosure judge (with the assistance of a special advocate) to identify those who were involved in the process of jury tampering, and so far as the defendants who were not proved to be so involved, he should then have ordered severance and allowed their cases to proceed to trial by jury.

Unsurprisingly, given the complexity of three separate, uncompleted and very lengthy trials, and numerous public interest immunity applications, a degree of uncertainty about precisely what Treacy J had or had not seen under PII conditions became apparent. We therefore examined the history of and the evidence relating to every public interest immunity application which he considered. Conscious that we should be considering the safety of a conviction following trial by judge alone, we decided that before the hearing of the appeal we should be provided with and examine the entirety of the material shown to him.

The Crown resisted the applications on the basis that the orders for disclosure made by Judge Roberts had been complied with and that the disclosure issue would be kept under continuous review and re-visited if and when the need arose. On that basis the possibility that the defence would be deprived of material which should have been disclosed to them on the substantive issue of their guilt, or otherwise, was remote.

Treacy J made it entirely clear that he would not examine any material on which the decisions to discharge the earlier juries or to order trial by judge alone were based. Nevertheless he concluded that in accordance with the provisions of CPIA 1996, as the trial judge, he remained under a continuing obligation to review undisclosed material relating to the issues which would be likely to arise or would arise at trial, so as to ensure that any material which might assist the defence or undermine the case for the prosecution against them was properly disclosed.

In summary, therefore, he declined to examine the material which had culminated in the decision that the case should be tried without a jury, but he was determined that, notwithstanding the case was to proceed to a trial by judge alone, the defendants should not be deprived of their entitlement to judicial oversight of the disclosure process in relation to the trial itself.

He began his examination of the PII material with the assistance of the Crown in the usual way, proceeding on his own until such time as he might need the assistance of special counsel, or, assuming that the procedure in this jurisdiction permits it, (which at present, we doubt) the assistance of a Disclosure Judge. This was the sensible course, and as it turns out that there was nothing in the material shown to him on which he needed the slightest assistance, any other course would have been wasteful and pointless. We recognise that the situation may of course arise from time to time in which it will become necessary for the judge to seek assistance: if so, it will no doubt be sought, although in the usual way, if he were to do so he would remain responsible for the final decision. It is, however, possible that a judge may misdirect himself on these issues, or fail perhaps to appreciate that the material he has seen and which the defence has not, may undermine the requirement that the trial must be a fair one, and perceived to have been fair. As earlier decisions of this court show, the safeguard is simple and effective. In the event of an appeal this court will review every piece of material seen by the judge and decide whether his decision was correct.

That is what we did. We examined all the material seen by Treacy J. Our examination was assisted by a short note from counsel for the prosecution, together with transcripts of the ex parte hearings before Treacy J as well as a list of issues circulated on behalf of the appellants on 22^nd October 2010 that were relevant to the PII review which we conducted. Like Treacy J, we applied the ordinary principles which arise when PII considerations are engaged. In addition, we asked ourselves whether, in the course of the investigation into this material, anything might have been seen by Treacy J which might have been prejudicial to any defendant, and if so, whether and how the prejudice might properly be overcome when he, Treacy J, was the trial judge in a case tried without a jury.

Having examined the material we gave a very short judgment, which was disclosed to counsel for the appellants, that:

“(a)

The process was conducted strictly in accordance with well established principles and counsel for the Crown was at pains to ensure that the judge was fully informed of all relevant considerations.

(b)

No single piece of undisclosed material could have advanced the defence of any of the appellants, nor undermined the case for the prosecution against any of them.

(c)

No single piece of undisclosed material could be said to have constituted even potential prejudice against any defendant. All the material we have seen related to defendants who were unconnected to this trial, or where it referred to any of the defendants, was made subject of admissions by the Crown. ”

None of the material relating to jury tampering was relied on by the Crown against any of the defendants, and none of that material was shown to Treacy J in the course of any public interest immunity application or hearing. Nevertheless a potential problem was said to arise from a document dated 11^th February 2010, containing the “Crown’s position on disclosure” in which it was stated that “the remaining sensitive material held is either irrelevant or is inculpatory to the defendants”. As this observation appeared to create concern among the appellants, we specifically asked whether the Crown was in a position to assure us that the material reviewed by Treacy J was the same material which we, in our turn, had reviewed. We were given an unequivocal assurance to that effect by leading counsel for the Crown in the presence of the appellants and their counsel. We have no hesitation in accepting it. Without in any way seeking reinforcement of that assurance, we should simply record that Treacy J himself was adamant that he did not wish to consider any material bearing on the question of the discharge of the earlier juries or the subsequent orders relating to the mode of trial. If he had been shown material bearing on those questions, we have no doubt that he would have made his objections clear and apparent both to the Crown and to the defendants. Accordingly the ground of appeal based on the proposition that the trial was unfair because Treacy J was made party to material prejudicial to one or other of the appellants which he or they had been unable to address fails on the simple ground that this did not occur. We remain satisfied that the short judgment given after our examination of the material, as set out in paragraph 55, continues accurately to reflect the facts.

We must now turn to the alternative argument, advanced on behalf of Blake, Cameron and Hibberd, but not Twomey, that the judge should have examined all of the material shown to Judge Roberts, Calvert-Smith J and this court on appeal from the decision of Calvert-Smith J, to enable those responsible for the findings in relation to jury tampering and the order for trial by judge alone to be identified.

The defendants submitted that the order for trial by judge alone could not and should not apply to a defendant against whom jury tampering was not proved. For this purpose it was necessary for the material relating to jury tampering, to be examined, and subject to any possible statutory problems in relation to RIPA, or the broad public interest, then to be disclosed to the relevant defendants, to enable them to advance their submissions in support of severance, and in their cases, trial by jury.

The problems with this submission are clear. First, if this process had been followed, the defendants would have been put in possession of material from which, rightly, as we have found, it had already been decided they should be excluded. Second, any examination by Treacy J of the material relating to jury tampering (or any later judicial supervision of the process) might have led him to consider material prejudicial to the defendants involved in the tampering, which is the very complaint made in the second ground of appeal. The fairness of this trial might have been jeopardised, and if the judge had not acceded to the application for severance, at least potentially damaged the perception of the fairness of the subsequent trial. Third, the argument fails to recognise that findings in relation to jury tampering may be made without it being possible for the court to ascribe responsibility to any particular individual defendant. Fourth, the legislation relating to trial by judge alone is directed to the trial process rather than to individual defendants where there is more than one, and the principles relating to severance encapsulated in section 5(3) of the Indictments Act 1915 are unaffected by it. It is inconceivable that any of these four defendants should have been tried separately, one or more by a judge on his own, and one or more by a judge and jury. Severance was a wholly unrealistic alternative.

This ground pursued on behalf of Twomey, Cameron supported by Hibberd criticises both the way in which the judge addressed the task of evaluating the evidence of Brockwell, and the conclusions that he reached about it.

For the reasons set out in the judgment of Treacy J it is plain that the evidence of Brockwell had to be addressed with great caution. In short, he was integral to and a party to the robbery. He was an employee of Menzies, and the Crown asserted that he was “the inside man”. He provided the information about the likely value of the currency available at the premises, and the means of access to them.

In March 2004 he pleaded guilty to conspiring with others to commit the robbery. He gave evidence for the Crown in all three trials conducted before Judge Roberts, and at the end of his evidence at the second trial, he was sentenced to 6 years’ imprisonment.

Brockwell was arrested on the morning after the robbery. Initially he claimed to have acted under duress but, appreciating that there was strong evidence against him, he soon admitted his involvement. The first submission is that following his arrest he was desperate to minimise his sentence, and that when investigating officers indicated an interest in the possibility that he would give evidence for the prosecution, that indication constituted an inducement to Brockwell, not only to implicate others involved in the robbery, but to do so by providing fabricated evidence against them. As a counterbalance to minimising his own role in the robbery, the roles played by others were exaggerated. Therefore when approaching his assessment of Brockwell’s evidence, the judge should have adopted an approach similar to that required by section 76 of the Police and Criminal Evidence Act 1984 when a judge is required to decide on the admissibility of a confession by a defendant, which is represented to have been obtained in consequence of anything said or done which was likely in the circumstances existing at the time to render the confession unreliable (notwithstanding that it may be true).

Treacy J declined to adopt this approach, and in our judgment he was correct to do so. When a co-accused makes a confession and pleads guilty, and then makes a witness statement and gives evidence against other defendants, section 76 has no direct application. The judge is required to examine the reliability of the witness and reliability of the evidence. At paragraph 122 of his judgment, Treacy J summarised his task:

“The question for me in the end is whether his evidence is reliable and truthful, notwithstanding those significant attacks which can be made on his credibility and matters raised in relation to his handling by the police.”

This was a question of fact, not law, which he proceeded to consider, by examining all the relevant submissions made on Brockwell’s behalf.

At the trial the appellants had available to them the records of Brockwell’s interviews under caution, copies of the notes kept by his legal adviser, records of the “debrief” interviews, as well as transcripts of the evidence he had given at each of the previous trials. This material was available to be deployed on behalf of each appellant, and it was deployed during the cross-examination not only of Brockwell, but of the police officers who dealt with him and handled him. As the judgment shows, following a careful analysis of the evidence, and the care with which Brockwell’s evidence should be approached, Treacy J concluded:

“…Notwithstanding the matters raised, Brockwell was providing a reliable account as opposed to one fabricated in order to satisfy the police and thereby obtain a reduced sentence. ”

Further argument developed by Miss Brimelow on behalf of Cameron was directed at the judge’s observation that the evidence of Brockwell was “remarkably consistent” a conclusion to which, she submitted, no reasonable tribunal could have come. In the context of the present trial, Brockwell gave evidence over a period of some 7 days, of which approximately 4 days were taken up by cross-examination. Miss Brimelow analysed the evidence and produced a schedule in which she identified alleged inconsistencies in Brockwell’s evidence which made the judge’s observation about his consistency untenable, and also served to highlight the inherent unreliability of Brockwell’s evidence.

In her oral submissions Miss Brimelow took us through some of the inconsistencies and after the hearing, as we indicated that we would, we considered the remaining inconsistencies identified in the schedule. Our conclusion can be expressed briefly. Given the length of time Brockwell spent in the witness box on the occasion of this trial, and the number of previous occasions upon which he had given evidence before the trial, it would have been remarkable indeed if no inconsistencies could be identified. However the alleged inconsistencies were the subject of submissions to the trial judge, and carefully considered by him. (In particular, see paragraph 126 of the judgment). Having considered these inconsistencies, the judge was entitled to come to the conclusion that they were in the overall context “very few indeed and where they occurred were minor”. (See paragraph 143 of the judgment). In our judgment the way in which Treacy J evaluated the evidence of Brockwell is not susceptible to criticism. The conclusions he reached after lengthy and detailed analysis were justified, and fully explained. This ground of appeal is rejected.

The prosecution case against Cameron was that he had been a party to the planning of the robbery at Menzies, and on 6^th February, he had travelled to the premises of Menzies as part of the team intending to carry out the robbery. If so he was guilty of the robbery alleged in count 3: count 4 represented the alternative that if he was not present participating in the robbery, he was party to the agreement that the robbery should take place.

The evidence against Cameron derived from the fact that he met Brockwell in company with Twomey on at least eight occasions shortly before the robbery at Menzies. Brockwell gave evidence of meeting him on two occasions before 30^th December 2003, on 30^th December itself, on 10^th, 16^th and 21^st January 2004, on and around the 3^rd and 5^th February. Four of those meetings were captured on film or CCTV. They appeared to show that he was fully involved with Twomey, attending the discussion, rather than a disinterested non-participant, who just happened to be present. The meeting on 5^th February took place, according to Brockwell, so that he could show Twomey and Cameron the lane, Spout Lane, from which he (Brockwell) would eventually collect the robbers who entered the premises. CCTV footage, which was independent of Brockwell, showed Cameron, Twomey and Hibberd at the Days Hotel Ruislip very shortly after the robbery had taken place and Cameron assisting them to move some heavy bags to the room he occupied with Twomey. When they were interviewed under caution, or put forward prepared statements, Cameron Hibberd and Twomey accepted that they were together for a substantial part of the evening of 6^th February, and in particular at the time of the robbery. At a much later stage, following Cameron’s eventual arrest, notes prepared by him were found hidden in a hot water bottle at the premises where he was arrested. The judge was to describe them as having “all the hallmarks of someone preparing and rehearsing an account to be put forward when arrested”. As we have emphasised from the outset, the full details of the evidence involving Cameron, the links between that evidence and the remaining evidence in the case, and his account offering innocent explanations for the matters relied on by the Crown are fully set out in Treacy J’s judgment.

Treacy J rejected a submission that there was no case for Cameron to answer at the close of the prosecution case. He decided that he should not “intervene at this stage”. Moreover the position had not been reached “where by the credibility of Mr Brockwell has been so heavily damaged that I should reject his evidence out of hand at this stage”.

In our judgment the conclusion that there was a case for Cameron to answer, whether as a participant who entered the premises at Menzies on the night of the robbery or alternatively as a party to the agreement that the robbery should take place, is unimpeachable. The facts we have summarised speak for themselves.

At the end of the trial Treacy J made a number of crucial findings of fact.

“Cameron…had a designated part…to drive the robbers to…Spout Lane and…take them away afterwards. Earlier…the Crown appeared to suggest that Cameron may have been one of the robbers who …entered Menzies… By the time Cameron came to give evidence the allegation…was that he acted as the driver…his participatory role in the meetings which Twomey had with Brockwell satisfies me that not only did he have knowledge of what was to take place, but also he was to have a role in the events. The role of driver ascribed to Cameron by the Crown appears to me to make sound logical sense. Cameron’s previous good character, and in particular absence of violence from his record, suggests strongly to me that he would have been unlikely to be allocated the role of a person who had to enter premises, threaten or intimidate staff, and carry a firearm.”

The submission was that the only evidence against Cameron was circumstantial, and although not fully articulated, it followed that the circumstantial evidence was so insubstantial that the conviction was unsafe. This submission is misconceived. The case against Cameron was not exclusively circumstantial. There was ample direct evidence including, but not restricted to the planning meeting he attended, telephone records of contact with Twomey, cell-site locations supporting the journeys he undertook with Twomey, and his involvement on the very night of the robbery at Menzies with both Twomey and with Hibberd. The judge examined all the features of the evidence, including any aspects of the individual pieces of evidence which might serve to weaken or destroy the Crown’s case against Cameron. The judgment includes an exhaustive exegesis of Cameron’s explanation that his association with Twomey, his brother-in-law, was not connected with the robbery, or the planning of it, and that he had an innocent answer to all the allegations against him. The conclusion is unimpeachable.

There is nothing in either of these grounds.

Each of these appeals against conviction is dismissed.

Hibberd and Cameron appeal against sentence.

The judge described the robbery as a “carefully planned and professionally executed armed robbery at secure warehouse premises”. The professionalism of the offence could be seen not only in its execution after weeks of planning, but also in the disposal of the proceeds of the robbery and indeed the wearing of clothing designed to replicate that of Menzies employees. He recorded that if it had not been for the incident involving Blake and a Menzies employee, Mr Westwood, there would have been no scientific evidence at the scene which would have led to the identification of the robbers, and that the vehicles used by the robbers to leave the scene were burnt out to defeat any investigation.

Treacy J noted that each of the six robbers who entered the premises was armed with a firearm, one of which was a sub-machine gun. Blake chased and fired live ammunition at one of the employees at the scene, and Treacy J concluded that that was not the only loaded firearm being carried that night. However he was unable to attribute personal possession of a loaded firearm to Twomey, Hibberd and Cameron, but concluded that their liability for the possession of loaded firearms was a joint responsibility of the group of robbers as a whole.

The judge pointed out that quite apart from Mr Westwood, more than a dozen employees were rounded up, threatened, restrained, and in at least two cases roughed up in order to enable the robbery to succeed. Although the robbers had escaped with a very large sum of money, they clearly hoped and intended that a far greater sum should be obtained.

Hibberd, who was 43 years old, was sentenced by the judge on the basis that he was recruited to take place in the robbery and had not played any part in its planning. However he found that he was a trusted member of the gang, not least because he had accompanied Twomey back to Days Hotel after the robbery. He did not regard Hibberd’s previous convictions for violence as aggravating his situation, but concluded that his physical presence and self-confessed continuing willingness to use it to enforce his will, made him an attractive member of the gang.

Cameron, who was 50 years old, was a man of previous good character with a good work record and supporting references. He was sentenced on the basis that he was involved in some of the planning meetings with Twomey and Brockwell, although the judge did not regard him as playing any significant positive role in the planning. He concluded that Cameron had not actually entered Menzies, but had provided transport for the robbers whom he knew carried firearms, some at least of which were loaded. He had become involved because of his relationship with Twomey but he was fully aware of what he was getting involved in, and he was a trusted member of the gang, as was demonstrated by his presence, not only at the planning meetings, but after the robbery, at Days Hotel, where the proceeds of the robbery were taken. He took account of Cameron’s previous good character as a relevant factor, but it did not mitigate sentence to any great extent because of the seriousness of the offence.

Treacy J then considered the time which had passed before the appellants had been brought to justice, but, although he made some allowance for the delay, he concluded that in the circumstance of this case, the factor of delay could not greatly assist the appellants: each of them had denied guilt, and some had avoided detection or arrest for some time. A number of grounds are advanced in support of the appeals against sentence.

The first is that the judge, having taken into account the mitigating features he identified, must have taken a starting point for sentence for these two appellants which was too high. Reliance was placed on the well-known case of R v Turner [1975] 61 CAR 67, where the court said that the normal sentence for anyone taking part in a bank robbery, or in the hold up of the security or Post Office van, should be 15 years if firearms were carried and no serious injury done. Dealing with it generally, a guideline decision of this court which is now some 35 years old and which addresses a fairly common offence, in this case professional planned armed robbery, is likely to have been overtaken by subsequent decisions. Indeed in more recent cases higher sentences than 15 years have been approved. In R v Jenkins [2009] 1 CAR (S) 109 the Court of Appeal suggested that Turner no longer had relevance as a reliable guide to the appropriate level of sentence. It was suggested that more recent guidance could be found in McCartney [2003] EWCA Crim 1372 and Atkinson [2005] 2 CAR (S) 206. In short the guidance offered by Turner should no longer be treated as if it offered a ceiling or cap to the appropriate sentencing bracket.

The second submission, closely linked to the first, is that the sentences did not adequately reflect the personal mitigation of these two appellants, and the differing role played by the four men convicted of the robbery. Thus, Hibberd’s role, as a “recruited help” who did not himself discharge a firearm is underlined. Since the offence his partner has given birth to children, and he has been in gainful employment. For 2½ years he was subject to stringent bail conditions. As to Cameron, his previous good character, supporting references, close family relationships and good work ethic was emphasised, against the background in which the judge found that he did not enter the premises and was not found to have been carrying a gun.

Carefully advanced as these submissions were, we cannot find any error in the way in which the judge approached his sentencing decision, or that the sentences that he imposed can properly be regarded as manifestly excessive. He made a careful analysis of the respective levels of culpability of all four defendants before him, such mitigation as was available to each of them individually, and the end result fell within the appropriate bracket of sentence.

The third, and final ground advanced on behalf of the appellants is distinct from the first two, and is directed at the practical effect of the sentences imposed by the judge. Before Blake can be considered for release on parole, he will have to serve a minimum of 10 years 9 months’ imprisonment (that is half the notional determinate term the judge had in mind). Hibberd and Cameron, on the other hand, will not be subject to the automatic release provisions which apply to their sentences until they have served two thirds of the determinate term imposed upon them because their sentences are subject to the pre 2003 Act sentencing regime. In Hibberd’s case, that period will be approximately 11 years 9 months, and in Cameron’s case 10 years imprisonment. Given Blake’s antecedents and the role attributed to him by the judge in the offence the relevant legislative regimes results in an unfairness, which the sentencing judge could not have intended.

The fallacy is that like is not being compared with like. The sentence imposed upon Blake is not a determinate term: it is a life sentence and the date upon which he will be released (if he is ever released) will be for the Parole Board. That of itself is sufficient to dispose of the argument that the result of the fully justified sentences imposed by the judge created an unfairness which requires interference by this court.

The appeals against sentence are dismissed.