Observing History – Heathrow Robbery Trial Starts Without Jury

Supporters of the defendants in the UK’s first modern criminal trial where a jury has been denied placed banners on the railings outside the Royal Courts of Justice.

This morning I went to the Royal Courts of Justice to personally witness the start of the first modern criminal trial in the UK where the defendants have been denied a jury.

No jury was present due to jury intimidation which has occurred during a previous trial. In such cases Section 44 of the Criminal Justice Act 2003 brought in by the Labour Government allows the trial to take place without a jury. My views on this are:

• It a terrible indictment on our police that they are unable to protect jurors and haven’t been able to bring those disrupting the judicial process to justice themselves.
• By removing the right to a jury trial a key safeguard against state abuse of power has been eroded.
• I am concerned that this trial may be the first of many. If the police can’t deal with jury intimidation connected with a robbery; how would they cope if problems occurred in a terrorist trial, there the consequences of a justice not being done, and not being seen to be done, could itsself incite more anger and further terrorist acts. I am concerned that what has started today may ultimately make the UK less safe.

In my previous article on the subject I suggested a number of ways in which the jury could have been protected; I think that the law allowing this kind of jury free trial – which was brought in by the current Labour government in 2003 and was being used for the first time today ought be repealed immediately.

My Experience Visiting the Court

The usual security theatre (metal detectors, X-ray machines) etc. greets those entering the Royal Courts of Justice court complex. Staff were fairly relaxed though; the man who entered in front of me said he was carrying a hard disk containing CCTV footage for use in a trial and asked if the X-Ray machine would damage it. Security officers waved the man straight through without looking in his rucksack.

Proceedings were held in Court 35 at the Royal Courts of Justice. This court room was on the first floor of an annex to the main Royal Courts of Justice building. With very high ceilings, wood panels, stonework which wouldn’t be out of place in a church, a red carpet on the judge’s platform and the royal crest on the wall at the back it looked just like a stereotypical courtroom which might be chosen as a location for a TV drama.

Three benches at the back of the court were designated for public use. The court had been built with a public gallery on a second level; however it appears this has fallen into disuse. The press were allocated a bench and a half in-front of the public; however many sat with the public. This arrangement appeared to have been adopted as more press were expected than could fit on the dedicated press-benches – with desks – situated opposite the seats intended for the jury and the dock.

The defendants were on bail, and so were in the public area chatting to their legal teams outside the court room before the trial began. The four defendants sat in the dock which was directly in-front of the jury seats. Any jurors serving in this court would have seen the backs of the defendants heads during the trial and would not have been able to look at their facial reactions during the proceedings.

The court room was bustling. There were around eleven members of the press, two of whom were reporters from the BBC, and fifteen members of the public (plenty for a jury!). The court appeared to me to be rather over-staffed with people, many of whom were doing very little; there were two court clerks – wearing wigs and gowns, two ushers, the judge’s personal clerk, a technician and a stenographer. While it’s not clear why all those people are required, it does help explain why justice is so expensive.

This morning the main hall of The Royal Courts of Justice looked exactly as it does in the 1882 image above

The defendants each had their own legal teams (there were at least three distinct barristers for four defendants) so the court was rather crowded with at least seventeen working lawyers present. All those present were asked to stand as the judge entered; a few words akin to a prayer, were said by the judge’s personal clerk. The judge was wearing a red gown, a wig, and had fluffy white “cotton-wool” cuffs which reached his elbows. The judge was relatively lively, articulate and coherent, however at times both the judge and prosecution barrister were using such over the top “far-back” posh accents that they sounded like something from a comedy sketch show and would have been hard to follow had it not been for their deathly slow delivery (presumably for he aid of the recorder). I’m mentioning this, not only to give a feel for the atmosphere, but to highlight the fact that without a jury all those involved in the whole court room charade are members of a wigged, caped, immaculately groomed and well spoken elite.

Proceedings kicked off with the the defendants being asked by one of the clerks to confirm their names.

This was followed by the judge asking the defence about an application they had made to defer the trial. A defence barrister explained that attempts had been made to approach the Supreme Court asking them to stop the trial going ahead [without a jury]. The barrister reported that she had had an email from the supreme court registry saying the court had no jurisdiction and would be following that up formally later.

The next item brought up was the question of disclosure of the reasons why the trial was being held without a jury (so far no details of the jury interference has been released). Sam Stein QC, representing Mr Hibberd, said that the judge needed to be made aware of Mr Hibberd’s “involvement or non-involvement” in the jury interference. He argued that if Mr Hibberd was not implicated then there ought be a jury trial for the firearms counts on the inditement. He said : “M’laud will want to consider…” a public interest disclosure, a public interest report a “PIR”. The defence QC rhetorically asked if the defence needed the information relating to the jury intimidation needed to be disclosed to the defence; he suggested the judge could ask to see it himself without disclosing it more widely.

The judge asked if the defence would “apply” to him asking him to recluse himself from hearing the case after he had read about the defendent’s role (or lack of a role) in the jury intimidation. In response the defence barrister said no, as his client hadn’t been involved in the jury intimidation, that wouldn’t happen. The barrister said that at some point “character” would be taken into account during the proceedings; he suggested it didn’t matter if the judge learnt about his client’s character now or later. He also suggested something along the lines of: now wasn’t the time to consider implications on the fairness of the trial – that would be reviewed afterwards by others.

Another defence barrister took the opportunity to speak. He said that without a jury trial management ought be slightly different; he suggested there ought be greater focus on the “skeleton of the evidence rather than the flesh”; he said the situation in this trial was very different than in one where the net aim is to influence members of the jury without experience of a criminal court. Eventually coming to the point under discussion – if some of the charges ought be dealt with in a separate trial with a jury – this barrister said that the firearms matter was some years before the robbery and they were clearly independent cases.

Prosecution barrister Simon Russell Flint QC was able to put forward his view; he said that in the previous trial the firearms matters had taken up only two days and involved six witnesses. He was suggesting both the matters were connected and stressing dealing with them both wouldn’t be too time consuming. When the prosecutor mentioned what the directions which had been given to the jury in the previous trial with respect to the firearms matters this prompted the judge to explain how he was going to approach the current case. He said he was going to separate his role as “Judge” and as “Jury” he would first ask himself if the evidence could be used to support the prosecution case and secondly ask himself he he was sure it in fact did.

Defence QC Sam Stein briefly indulged in talking to the press present – providing them with the sound-bite some of them were looking for. He said: “We are breaking history, this is the first time a court has started a juryless trial”. This statement resulted in members of the press reaching for their notebooks and loudly conferring to try and agree between themselves what he’d actually said.

The judge announced that there was no reason the process (the trial) could not continue. One of the defence barristers spoke-up to mention an appeal which has been lodged in the European Court – questioning the fairness of the process; but the defence barrister appeared to agree that ought not delay the trial – she said she was raising it as a matter of courtesy.

Still dealing with introductory and preliminary matters the judge turned to the press. He asked members of the press where they were in the court room, some people on the press benches, in the public gallery, and a couple a bit closer to the action, raised their hands. The judge said that there had been plans, if the press presence had been larger, to allow the press to sit in the jury seats; the journalists responded with a half-gasp, half-laugh. The judge said the press should approach the court clerk, or his personal clerk – who he introduced as “Miss Middleton” if they had any queries about the case.

The judge then asked the prosecution barrister if there were to be any reporting restrictions. In response the prosecutor referred to restrictions imposed by the court of appeal. The press (and I – though the speech was addressed only to the official press) are forbidden from reporting the names of other defendants who are not being tried in the current trial but are alleged to have been involved in the robbery. One effect of this is to make it harder for people identify any further trial from the court lists if / when it takes place. The former home address of a witness – which is to be mentioned at some point in the trial – can also not be reported.

The judge asked if the press had any representations to make against the restrictions. He suggested one member of the press speak on behalf of all. Without any deliberation one man stood up and said “No Your Honor”. One of his colleagues requested a copy of the inditement and the self-appointed spokesman for the press rapidly stood up again to ask for that.

Bail was the next question addressed. There was some discussion about sureties; with the defence stating that these often “go from case to case” – I’m not sure what he meant by that. The judge responded to say the aim of a surety was to ensure the defendants attend trial; and as the defendants were present they had served their purpose.

Mr Blake’s representative then told the judge that three of his sureties were snowed in in Suffolk and asked if they could be entered into in a police station. The judge said this was normal practice and asked that it be done by the end of the day. I am confused about what exactly was going on but clearly the defendants bail conditions needed to be adapted to cope with the trial. The judge asked for reassurance that the defendants were not being asked to report to the police on days which they were appearing in court. The defence barristers asked if their clients could remain free during the day. The judge banned them from leaving the Royal Courts of Justice complex, but said they would be free to have their lunch in the public areas.

The defendant’s representatives then asked if their clients could spend the trial sitting in the press-box rather than in the dock on the grounds that the press box has a larger area on which papers can be placed. The judge agreed with this request, subject to there being no explosion in press interest and demand for seats, in which case the defendants would be asked to return to the dock.

The final item of preliminary business involved the judge addressing the defendants directly, not via their lawyers, – he asked them to be ready to enter the court twenty minutes before the morning start time, and five minutes early after lunch. He said that if any of them failed to attend the trial would still proceed in their absence.

The judge then addressed the court. He said we had reached the stage in proceedings where the defendants would normally be put in the charge of the jury. He said the court clerk had been asked to adapt the usual wording used to put them in his charge. The clerk listed the names of the defendants and said they were charged with 18 counts (they were not spelled out) all linked to the same incident. The clerk said:

“Your lordship is charged to say, having heard all the evidence, if they are guilty or not”.

Prosecutor Simon Russell Flint QC then began; passing what he had trouble not calling the “Jury bundle” to the judge. Aided by illustrations, maps, etc. in the bundle Mr Flint outlined the case; starting with the fact that the events occurred six years ago and described them as a “professionally planned, professionally executed robbery”. He listed precise amounts in various currencies which were stolen and then, using a 2004 exchange rate to convert to sterling rather pompously announced the full amount down to the penny.

The “story” of the robbery was then outlined in a painfully slow and repetitive manner, adding little to what has been written about in the press. Interesting elements include:

• Heavy reliance by the police on evidence of phone usage (who called who, when and for how long).
• Evidence from “Cell Site” records; was being used to infer “opportunities for meetings” when two phones were near.
• The defendants were alleged to have taken on a plan devised by others.

One thing which struck me was that the police were very closely following this group; they had been recording their conversations and knew their target yet they didn’t act to prevent the robbery taking place – a robbery in which a gun was fired multiple times and someone could have been seriously injured or killed.

While the judge was struggling to understand the maps and aerial photographs he had been presented with the prosecutor respectfully noted that it was still to be decided if the judge is to go on a site-visit, as a jury might in a similar case, to view the scene of the robbery for himself. (Part of the problem was that the prosecution tried twice but couldn’t provide identical copies of the files for the prosecutor and judge).

During his introduction the prosecutor said other defendants may still face separate trials; some have already been acquitted.

Most of the press only stayed for the first half-hour or so; there were only nine people left in the public / press seating at the end of the morning session. The prosecutor was deathly slow, boring, and speaking towards the judge – so directly away from the public seating.

When I left the courts there were many more protesters outside than there had been when I went in. I spoke to some and it appeared some were not there to protest generally against the loss of juries in criminal trials but were there to support these specific defendants; one explained to me that the defendants were from the same part of London as he was so he was there to support them. Only one or two of the thirty or so people protesting outside came into the court.

Openness

While in the UK the doors of courts are almost always open there isn’t much transparency in the justice system as:

• It is hard to find out when cases of interest are scheduled. I found out the date and location of this one via a FOI request. As I knew the defendants names I could have watched the official court lists daily and got a few hours notice, but that isn’t possible with local magistrates courts.
• Court papers are not published online. Had today’s “jury bundle” been published everyone in court (and outside) could have followed along. As the request from the member of the press highlights the full list of charges was neither read out or made available on paper. The Stockwell Inquest and Diana Inquest show how transcripts, evidence and court papers can be effectively published online making the process accessible.
• As I understand it – while the taxpayer pays for the recording and transcription of court cases the results are not automatically released to the public;