The Guardian has an interesting story on a retrial of four, including some former or current Sun employees. To quote the particularly relevant bits:
A decision to remove a judge lined up for a retrial of four Sun journalists has led to a legal row at the Old Bailey involving some of the most senior judges in the country.
Judge Richard Marks has been replaced by Judge Charles Wide to preside over the forthcoming retrial of Chris Pharo, the Sun’s head of news, Graham Dudman, a former managing editor, and two others.
On Friday morning, defence counsel for the four journalists lined up in front of Wide to question the decision. At one stage they threatening to take the matter to judicial review.
Defence counsel indicated Judge Marks had emailed them advising them, “that he had been removed.” The decision appears to have been taken within the last month. The email is said to have given:
the impression that his honour Judge Marks has been taken off this against his will.
In particular, the Judge’s email is reported to have said he has been taken off by more senior judges: “he says his ‘elders and betters’…” One defence barrister is reported to have submitted:
The way this has come about gives rise to the impression that something has been going on behind the scenes which should not have been going on behind the scenes and which should have been dealt with transparently.
He said the “the defendants are extremely concerned” and were “entitled” to know why Marks was being replaced by Wide. There is also a whiff of grandstanding in some of the comments from the defence barristers:
It can’t be a state secret, I don’t think Mr Putin is going to lose any sleep over why my Lord has been selected. But it is this sort of obsessive childish secrecy we get in this country which causes enormous disquiet.
But there is also a point of substance:
He said “If there is an explanation” is should be made public. It could simply have been a “tactless” move to take a judge off a case to which he has already publically committed.
The inference being drawn by at least one of the defence barristers appears to be that Judge Marks has been replaced by a judge with a more prosecution friendly approach to mens rea.
There are two reactions to this. One is that this kind of email correspondence between judge and counsel is not that unusual and does not of itself indicate anything suspicious. If so, Judge Marks must be regretting his causal remarks which do give a sense of some pique at having been pulled from the case. But pique at being pulled could be for any number of reasons. Some have suggested to me that on the basis of the facts as reported this is not an unusual set of occurrences and we should read nothing into it.
If that is right, and neither the decision nor the communication is unusual, then the approaches of defence counsel could come under scrutiny. The have an obligation to protect the interests of their client but that is subject to obligations not to waste the court’s time (rC3). Also, they are obliged not to abuse their role as advocate by:
making statements or ask questions merely to insult, humiliate or annoy a witness or
any other person (rC7). The rules offer extra protection to a witness where if an advocate makes a serious allegation against a witness they must give that witness a chance to answer the allegation in cross-examination (rC7). Here the intriguing issue is what happens where a serious allegation is made against a judge, who is not a witness and is not managing the trial? It certainly appears to be a serious allegation which is beginning to be made.
As regards that, the rules of conduct require that an advocate must not make a serious allegation against any person unless the advocate has reasonable grounds for the allegation. In this regard one could debate whether the allegation is actually being made, I think it is, but also whether the email from Judge Marks is reasonable grounds for doing so, which I think is debatable. I’d give the defence barristers the benefit of the doubt.
Of course, the easiest way of dealing with this would be to give a proper explanation for the decision to the defence and prosecution. Delay and secrecy in this regard is not conducive to administration of justice and by now has already done some damage.
A judge involved in the listing of the case has subsequently sought to squash the defence allegations by indicating their concerns are without foundation: http://www.theguardian.com/uk-news/2015/feb/13/sun-retrial-complaints-over-removal-of-judge-branded-absurd?CMP=share_btn_tw