Fears over the decision to swap judges in the retrial of four Sun journalists was "emphatically" dismissed as “absurd” by Mr Justice Sweeney this morning.
Last Friday, a legal row erupted at the Old Bailey after the “secret decision” was made by “elders and betters” to appoint Judge Charles Wide to the case in place of Judge Richard Marks QC.
After a three-month trial in Kingston, overseen by Judge Marks, a jury was unable to reach verdicts on current and former Sun journalists Graham Dudman, Chris Pharo, Jamie Pyatt and Ben O'Driscoll in relation to charges of conspiracy to commit misconduct in public office. Fellow defendants John Troup and John Edwards were cleared.
When the Crown Prosecution Service announced the decision – which has faced a large amount of criticism in the media – to retrial the defendants, Judge Marks told the court that it “will have to be before me, subject to making enquiries, it would be preferable if I was to deal with it”.
However, on Wednesday last week Judge Marks emailed the defendants’ barristers to say a decision had been taken to replace him with Judge Wide. He said: "It has been decided (not by me but by my elders and betters) that I am not going to be doing the retrial."
Nigel Rumfitt QC, for Pharo, demanded an explanation for the move and suggested that it would appear as if “something has been going on behind the scenes”.
"It cannot be a state secret,” he said. “I don't think Mr Putin is going to lose any sleep over why my lord has been selected. It is this sort of obsessive childish secrecy we get in this country which causes intense disquiet.
"It was on 4 February we received an email, part of which I have quoted, that caused very considerable consternation, which very much gives the impression that his honour Judge Marks has been taken off this against his will.
"This deserves an explanation. The way this comes about gives rise to the impression that something has been going on behind the scenes which should have been dealt with transparently."
Today, Sweeney, who presides over the area circuit, dismissed the concerns.
He said the decision was “not a matter for" Judge Marks and took “full responsibility for the decision, which I approved at the time, that His Honour Judge Wide QC should preside over the retrial”.
He noted the submissions of the defence last Friday, and dismissed them as “misconceived”. They were:
- It was “usual procedure” for the same judge to conduct a retrial
- The defendants would have a “legitimate expectation” of this
- This would “save time and expense”
- The email from Judge Marks had given “cause for concern”
- Judge Marks had “made a critical ruling during the trial as to the mental element required to be proved in relation to offences of conspiracy to commit misconduct in a public office”, and that Judge Wide and other judges would “take a different view of the law less favourable” to the defence
- The decision to appoint Judge Wide was “inappropriately made ‘in secret’
- And that “a fair-minded and informed observer would conclude that there was a real possibility that the reason for moving the case was to improve the prospects of conviction”.
But Sweeney told the Old Bailey this morning:
- There is no “usual procedure that the same judge conducts the re-trial” and that Judge Marks is “perfectly content not to be doing the retrial”
- Judge Marks’ email was “intended to be light hearted” and has been “significantly misconstrued”
- That Judge Marks did not making a ruling on the “mental element of the office of conspiracy to commit misconduct in public office”, instead adopting the joint position of the prosecution and defence. Sweeney said: “Hence, whoever is to preside over the re-trial, it would be open to either side to seek to argue the issue. Indeed, even if Judge Marks had ruled after argument on the issue, and whoever presides over the re-trial, it would still be open to either side to seek to re-argue it. In any event it may well be that, by the time of the re-trial, the Court of Appeal will have had an opportunity to consider and rule on the issue – which ruling will bind the trial judge whoever he is. Even if that has not come to pass, any ruling in the retrial may itself be subject to appeal.”
- The decision to appoint Judge Wide “was not taken ‘in secret’ in the pejorative sense”, but as a “judicial administrative decision”. He said that Judge Marks is due to oversee three other Operation Elveden trials, estimated to last 12 weeks in total, in the coming months and that this retrial would take him to 22 weeks or more this year and therefore “prevent him from being deployed on other serious cases during the autumn”.
- Judge Wide "was the obvious choice to preside over the retrial instead", citing his experience with such cases and his less busy schedule.
Sweeney said: "The defendants can have no legitimate fear that the independence and integrity of the judicial selection process has been compromised.
“It might be thought to be a sad day when it is suggested that, without more, a fair minded and informed observer would conclude that there was a real possibility that a judge exercising a judicial function had deliberately taken or approved an administrative decision to inappropriately favour one side over the other in litigation of any type.
“I wish to state, emphatically, that Judge Wide was not chosen, or approved, because of his view to date on the mental element issue. Nor was he chosen, or approved, in order to improve the prospects of conviction of these defendants.”
He added: “In any event, the suggestion made is absurd. This is simply the replacement, for good reason as one would surely expect, of one fair judge by another fair judge in relation to a trial process which will take place at a time by which it may well be that the Court of Appeal will have ruled on the mental element issue, which ruling will bind the trial judge whoever he is. Even if the Court of Appeal has not so ruled by then, the retrial and its fairness or otherwise will, in the usual way and in any event, be subject to appeal to it.
“There can be no forum shopping by either side in a criminal case, and it is to be hoped that, in the future, submissions of this kind will not be made without the most careful prior consideration.”