Judge rejects ‘absurd’ switch claim

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Published: Friday 13th February 2015 by The News Editor

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One of Britain’s top judges dismissed as “absurd” the suggestion that judges had been switched in the retrial of senior Sun executives accused over payments to corrupt public officials in order to secure a conviction.

In a rare move, Mr Justice Sweeney weighed in at the Old Bailey to settle the legal row which erupted that week after it emerged that original trial judge Richard Marks QC had been dropped in favour of Judge Charles Wide.

A lawyer for The Sun’s head of news Chris Pharo had raised fears that “something has been going on behind the scenes”.

Informing barristers in an email on Wednesday last week, Judge Marks, who presided over the original trial at Kingston Crown Court, said: “It has been decided (not by me but by my elders and betters) that I am not going to be doing the retrial.”

But Mr Justice Sweeney told barristers that Judge Marks was happy to step aside and the remark had been supposed to be “light hearted”.

He stated “emphatically” that Judge Wide was not chosen or approved to “improve the prospects of conviction of these defendants”.

Nigel Rumfitt QC, for Pharo, had demanded an explanation at a hearing before Judge Wide last week and was referred to Mr Justice Sweeney who is in charge of the area circuit.

Mr Rumfitt had said: “It cannot be a state secret. 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 February 4 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.”

In his response, Mr Justice Sweeney said he took full responsibility for the decision but described the concerns as “misconstrued” and warned lawyers that neither side of a criminal case could go “forum shopping”.

In his strongly worded ruling, the high court judge dismissed the suggestion that the decision had been made in “secret” or that Judge Wide would make a less favourable ruling on a point of law on “the mental element” than Judge Marks had done in the original trial.

Mr Justice Sweeney also rejected as “misconceived” the submission that an “informed observer would conclude that there was a real possibility that the reason for moving the case was to improve the prospects of conviction”.

On Judge Mark’s email comments, he said: “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.”

He concluded: “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.

“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.”

Pharo, ex-deputy news editor Ben O’Driscoll, reporter Jamie Pyatt and former managing editor Graham Dudman face a retrial on September 21 after a jury failed to reach verdicts on some charges of conspiring to commit misconduct in a public office last month.

Two fellow defendants – the Sun’s picture editor John Edwards and former reporter John Troup – were cleared of conspiring to commit misconduct in public office.

Pharo, 45, of Sandhurst in Berkshire; Dudman, 51, of Brentwood in Essex; and O’Driscoll, 38, of Windsor in Berkshire, were all originally charged with three counts of conspiracy to commit misconduct in public office. Pyatt, 51, also of Windsor, was charged with two counts each of the same offence.

O’Driscoll and Dudman were found not guilty of one of the charges, along with Mr Edwards and Mr Troup. The defendants deny wrongdoing and the retrial will start on September 21.

Mr Justice Sweeney handed down his ruling in a courtroom packed with senior barristers and journalists.

Published: Friday 13th February 2015 by The News Editor

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