At an Old Bailey hearing last Friday about the re-trial of four Sun journalists, barristers for the defendants questioned a decision to replace the judge who presided over the previous trial.
In a packed courtroom defence counsel suggested an email from Judge Marks showed he had been “removed from the case against his will,” and his replacement by another judge had caused “consternation” and that they should be “entitled to an explanation” as the decision had caused “genuine disquiet” for their clients.
The email from Judge Marks was said to have stated that he had been taken off the case by his “elders and betters”.
The complaint came during a hearing about the arrangements for the re-trial of four senior Sun staff over allegations relating payments to public officials; a jury had, last month, failed to reach a verdict in relation to these four journalists. Nigel Rumfitt QC, who is representing the newspaper’s head of news, Chris Pharo, said the decision said “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”.
Mr Rumfitt said that the issue went to the question of whether a trial would be considered fair. However a visibly angry Judge Wide, who has now been allocated the case, challenged the submission asking “Why shouldn’t they get a fair trial from me?” adding “If I’m perceived to be a fair judge what is the issue?”. Another defence barrister, Richard Kovalevsky QC, asked the judge to consider the perception of a “fair minded observer” to the change of judges and that there was “genuine disquiet” over the decision. Counsel said that if an explanation was not forthcoming he may have to ask for the judge to step down from the case.
Defence counsel told the court that the defendants felt that they had had a favourable legal ruling from Judge Marks in their case. He also pointed out that Judge Wide had given a different ruling in another trial which had resulted in the conviction of a former News of the World journalist (who cannot be named) – a point on which the journalist was appealing.
The counsel for the defence claimed the re-trial was already controversial. He said there had been “extensive criticism of the CPS decision to seek a re-trial”. It seems that this is a reference to an article in The Sun and an editorial in The Times newspaper both owned by News UK whose parent company News Corp’s Management Standards Committee was responsible for giving the police the evidence of corrupt payments being made.
Mr Rumfitt later suggested to the court that the change of judge “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”. However prosecution counsel, Oliver Glasgow, replied that he could not see the issue when “one fair judge is replaced by another”.
The hearing ended when Judge Wide ruled that there was “nothing for him to decide” and advised the defence to contact the judge in charge of dealing with the allocation of cases, Mr Justice Sweeney, if they objected to his appointment. Judge Wide pointed out that “It has not been suggested by anyone that the defendant would not get a fair trial” and if he made any errors “doubtless the court of appeal would put them right”.
The judge made clear that he had no objection to the proceedings being reported.
The defendants are set to appear for re-trial on the 21st September and continue to deny all of the charges.