IN THE CENTRAL CRIMINAL COURT

THE QUEEN
-VCHRIS PHARO
JAMIE PYATT
BENJAMIN ODRISCOLL
GRAHAM DUDMAN

RULING
Between 6 October 2013 and 22 January 2014 these four Defendants (who, at the time
of the alleged offences, were all employees of the Sun newspaper) and two others,
were tried before His Honour Judge Marks QC and a jury sitting in the Kingston upon
Thames Crown Court. At the conclusion of the trial the jury acquitted the other two
Defendants, but were unable to agree in relation to the charges of conspiracy to
commit misconduct in public office faced by these four.
When the Prosecution indicated that they would seek a retrial Judge Marks said, as
put before me by the Defence, that the retrial will have to be before me, subject to
making enquiries, it would be preferable if I was to deal with it. In saying that his
view was subject to making enquiries Judge Marks was, rightly, acknowledging
that, ultimately, his deployment is not a matter for him. Rather, given that this is his
base court, it is an administrative matter for the Recorder of London acting, because
this is an Operation Elvedon case, in conjunction with Mr Justice Saunders who has a
co-ordinating role in relation to such cases, and superintended by me in my role as
Lead Presiding Judge on the South Eastern Circuit. I thus take full responsibility for
the decision, which I approved at the time, that His Honour Judge Wide QC should
preside over the retrial.
It is variously submitted on the Defendants behalf that the usual procedure is that the
same judge conducts the re-trial; that the Defendants have a legitimate expectation
that Judge Marks would do so; that that would save time and expense; that an email
from Judge Marks to all counsel on 4 February 2015 gives cause for concern; that
Judge Marks 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 public
office; that other judges (including Judge Wide) take a different view of the law less
favourable to the Defence; that the decision to allocate Judge Wide was
inappropriately made in secret; and that (absent any explanation for re-allocating
the case) 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.

All these submissions are misconceived.

There is no usual procedure that the same judge conducts the re-trial. It is common for
a different judge to do so. Nor did Judge Marks appropriately qualified remarks at
the end of the trial give rise to a legitimate expectation that he would preside over the
re-trial either. Nor, putting aside any issues as to the propriety of its deployment does
Judge Marks email give rise to any cause for concern. He has confirmed to me that,
as I understood at the time, he is perfectly content not to be doing the retrial. He has
also told me that the words relied upon in the email were intended to be light hearted
and have been significantly misconstrued.
Equally, the reality is that Judge Marks did not make a ruling in relation to the mental
element of the offence of conspiracy to commit misconduct in public office - rather he
adopted what was then the joint position of the Prosecution and Defence as to what
the requisite mental element was. 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 allocate Judge Wide to the retrial was not taken in secret in the
pejorative sense in which that was advanced before Judge Wide last Friday. It was a
judicial administrative decision. Whilst this case is a serious one, there are other
serious cases that will be tried at this court in the autumn of this year. At the time that
this decision was made, Judge Marks was already committed to trying three other
Operation Elvedon cases variously fixed to start later this month, in April and in May
and estimated to last in total for some 12 weeks. At that time there was no
requirement to move any of those cases to another judge though that was and
remains subject to listing issues in other cases which can change at short notice.
Against that background, if the retrial had been allocated to Judge Marks that would
have involved requiring him to do 22 or more weeks worth of such cases during the
remainder of the year, and prevent him from being deployed on other serious cases
during the autumn. Applying the overriding objective, on the material known to me at
the time, and since confirmed by Judge Marks, there are no issues in the case that are
so difficult, so complex or so time consuming if dealt with by another judge as to
require Judge Marks to conduct the retrial. I therefore approved the decision that
Judge Marks would be better deployed dealing with other serious cases this autumn.
Judge Wide was the obvious choice to preside over the retrial instead. He has
experience in cases of this type. At the material time he also had three such trials in
his list, variously fixed to start this month and in March, but they were only estimated
to last in total some 4-5 weeks. Hence if he did the retrial not only would that free up
Judge Marks to do other serious cases in the autumn, but it would also result in a
better balance of work between Judge Marks and Judge Wide in relation to cases of
this type.
Hence 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.
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.
Sweeney J
13 February 2015