Sun journalists retrial row after judge removed from case
|
Version 0 of 1. 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 Judge Richard Marks has been replaced by Judge Charles Wide to preside over the forthcoming retrial of Chris Pharo, the Sun’s head of news, Graham Dudman, a former managing editor, and two others.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. Nigel Rumfitt QC, for Pharo, told the court that counsel for the four defendants had received an email in the past 48 hours fromMarks advising them that he had been removed. Rumfitt added that Marks had previously told them, in another hearing last month, that he would be taking on the case. The retrial comes after a jury could not reach a verdict in the case of Pharo, Dudman, Sun district reporter, Jamie Pyatt and former deputy news editor, Ben O’Driscoll . All four deny the charges against them. Addressing the court, Rumfitt said the email “caused very considerable consternation which very much gives the impression that his honour Judge Marks has been taken off this against his will. “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. “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.” 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 complaint is if there has been some back-stage manouevres which have not been explained to remove the designated judge,” said Rumfitt. In the hearing lasting more than an hour, it was claimed that more senior judges had intervened. Describing the email, Richard Kovalvesky QC, for Pyatt, said: “He [Marks] says he has been taken off it it by more senior judges, he says his ‘elders and betters’… The fact that this is the case is an extraordinary decision.” Kovalevsky added: “If that’s the case, we ought to have an opportunity to address the person who made it [the decision].” In the email dated 4 February, part of which the Guardian has seen, Marks told counsel for the defendants: “It has been decided (not by me but by my elders and betters) that I am not going to be doing the retrial.” Wide is the only judge so far to have presided in a case which has seen a conviction of a journalist in relation to allegations of unlawful payments to public officials for stories. The journalist who cannot be named for legal reasons is appealing the verdict. Kovalevsky said he knew that “there is a significant variance” between the judges when it came to “mens rea”, a common law test of criminal liability. In reply, Wide said: “Are you suggesting that a judge can’t change their mind after hearing fresh submissions?” Consideration of mens rea centres on the state of mind of the defendant at the time the alleged crime is committed and is often the subject of legal dispute. Legal dispute on cases of this kind concerning alleged corrupt payments have frequently turned on the knowledge and the intention of the journalist at the time of the alleged offence. Kovalevsky said the legal test was whether the public had the perception that a fair trial had taken place or not. If there was no explanation as to why Marks had been removed, this could pave the way for a perception that it was not fair, the QC added, particularly as a new judge would inevitably add to costs for the tax payer. Oliver Glasgow, for the prosecution, said he could not see an issue with “one fair judge replaced by another”. |