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Retrials

Principle

A variety of circumstances may result in a defendant being re-tried.

For example:

  1. the failure of the jury to agree upon a verdict (Archbold 4 - 438);
  2. the failure of magistrates to agree upon a verdict (Stones 1 - 47);
  3. a re-trial being ordered by the Court of Appeal (Archbold 7 - 112);
  4. a re-trial following a tainted acquittal - by intimidation, etc. (Archbold 4 - 128a) (see also legal guidance on Public Justice Offences incorporating the charging standard);
  5. an irregularity in the former proceedings that resulted in the jury being discharged (Archbold 4 - 262); and
  6. a re-trial in respect of a very serious offence where new and compelling evidence comes to light pursuant to Part 10 of the Criminal Justice Act 2003.

The decision to seek a re-trial will very much depend upon the public interest. Only cases involving significant public interest factors in favour of prosecution warrant a re-trial.

Normally the CPS makes any application for a re-trial. However, the defence can request a re-trial in certain circumstances, including:

  • where fresh evidence has come to light; or
  • where the defendant is suffering from ill health.

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Failure of Jury to Agree on a Verdict

Guidance

There is a presumption that the prosecution will seek a re-trial where a jury fails to agree on a verdict at the first trial.

The following factors should be taken into account when considering a re-trial in these circumstances.

  1. The merits of the case:
    • Is there still a realistic prospect of a conviction?
    • Have any material changes occurred during the course of the first trial?
    • Are the witnesses willing, and available, to give evidence again?
  2. Likely reasons for the jury's failure to reach a verdict:
    • Was the failure to reach a verdict perverse? If so, a retrial is likely to be appropriate.
    • Is there a suggestion that the jury was influenced by factors other than the evidence? This might bear investigation for an offence of jury interference (see Retrial following a tainted acquittal below).
  3. The public interest in seeking a verdict. Consider the following factors:
    • the seriousness of the offence;
    • the length of time since the offence was committed;
    • the likely delay until the case can be re-tried;
    • whether the defendant is in custody;
    • the likely sentence if the defendant is ultimately convicted; and
    • the consequences of proceeding or not (for example, any effect on linked or co-defendants).
  4. The interests and views of the victim(s).
  5. Any views expressed by the trial judge.
  6. Prosecuting Advocate's opinion.
  7. The views of the police.

Exceptional circumstances required for a third trial

Where two juries fail to reach a verdict, the presumption is that the prosecution will not seek a third trial unless there are exceptional circumstances. Factors that might justify a third trial include:

  • jury interference (this may require further investigation for an offence of jury interference); and
  • additional evidence that has recently come to light and was not available at earlier trials.

The case of R v Bell [2010] EWCA Crim 3 involved an appeal against conviction for murder, following a third trial. It was argued on behalf of the appellant that the third trial amounted to an abuse of process. The conviction was upheld.

The Lord Chief Justice however provided words of caution in relation to the use of re-trials:

"... the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed a crime (again, as here), on any fair minded objective judgment remains very powerful."

Procedure

Timing

It is in the interests of justice that a decision to seek a re-trial should be taken as soon as possible and be communicated promptly to the court, the defendant and the police.

It may be possible to foresee the likely verdict before the trial finishes. Prosecutors and caseworkers should be alert to this possibility. Wherever possible, consultation should take place and a decision reached (subject to any views expressed by the judge) before the jury returns.

In other circumstances, prosecuting advocates should be instructed to seek an adjournment to allow the necessary consideration of the case to take place.

The appropriate length of the adjournment to be sought is;

  • a maximum of 14 days, if the defendant is on bail; or
  • a maximum of 7 days if the defendant is remanded in custody. A decision should be made by the adjourned hearing date.

Only in the most exceptional circumstances should a further application to adjourn be made.

If the application for an adjournment is refused, prosecuting advocates should request a re-trial. It should be made clear to the court and the defence that the decision will be subject to review.

When the prosecution is obliged to request a re-trial without the opportunity of fully considering the case, a review of the decision should be made promptly by the Unit Head upon the criteria previously set out. That review should be completed within 14 days if the defendant is on bail, or 7 days if the defendant is in custody.

Levels of decision making

The question of whether to seek a re-trial should be referred to the Unit Head.

Any question of a second re-trial should be referred for a decision by the CCP or (Legal Director in London), through the Unit Head.

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Failure of Magistrates to Agree on a Verdict

Guidance

Generally, magistrates are obliged to reach a verdict. Where possible, an uneven number of justices should sit to adjudicate so that any question of failure to agree should not arise (Stones 1 - 47). However, if a trial is heard before an even number of magistrates, there is a possibility that they will be equally divided about the verdict.

In such circumstances, the court of its own motion should adjourn the case for re-hearing by another bench of magistrates if it cannot agree upon a verdict: Bagg v Colquhoun (1904) 1KB 554.

In the event of a case being adjourned for re-hearing as a result of magistrates failing to agree at the original trial, the reviewing lawyer should confirm that it is appropriate to allow the case to proceed to a re-trial.

Review should take into account the factors listed above where a jury fails to agree on a verdict.

Procedure

The further review of the case should be completed within 14 days of the end of the original trial, or 7 days if the defendant is in custody.

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Re-trial Ordered by the Court of Appeal

Guidance

Where the Court of Appeal allows an appeal against conviction, it may order the appellant to be re-tried. Section 7 of the Criminal Appeal Act 1968 provides that the court determines whether a successful appellant should be re-tried on a fresh indictment preferred by direction of the court (Archbold 7 - 112).

The court should consider this option of its own motion. However, in cases where the court appears not to be considering ordering a re-trial and there are clear grounds for submitting that the interests of justice would be best served by a re-trial, it may be appropriate to ask the court to consider ordering a re-trial.

Circumstances in which an appellant may be re-tried

The appellant may only be re-tried for:

  • the offence for which she/he was convicted at the original trial and which was the subject of the successful appeal;
  • an offence of which she/he could have been convicted on the indictment at the original trial;
  • an alternative count that was discharged because she/he was convicted of the offence subject of the successful appeal.

Procedures for dealing with re-trials ordered by the Court of Appeal are set out below.

Procedure

Strict time limits on arraignment

Where the Court of Appeal orders a re-trial, the defendant must be arraigned within 2 months of the order unless the Court of Appeal gives leave: section 8 of the Criminal Appeal Act 1968 (Archbold 7 - 113).

The CPS must ensure that the arraignment takes place within 2 months, and that the court knows that this is the case.

If a defendant has not been arraigned within 2 months she/he may apply to the Court of Appeal:

  • to set aside the order for the re-trial; and
  • for a direction that the Court of Appeal enter a verdict of acquittal.

The Court of Appeal may grant leave for arraignment outside 2 months if:

  • the prosecution has acted with all due (that is, "reasonable" or "proper": R v Coleman (1992) 95 Cr App R 345) expedition; and
  • there is good and sufficient cause for a re-trial despite the delay.

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Re-trial Following a Tainted Acquittal

Guidance

Sections 54 - 57 of the Criminal Procedure and Investigations Act 1996 enable the High Court to make an order quashing an acquittal in circumstances where the acquittal resulted from interference with, or intimidation of, a juror or witness (or potential witness). In such circumstances, an acquitted person can be re-tried for the original offence.

An application to quash an acquittal may only be made when:

  • a person has been convicted of an "administration of justice" offence involving the interference or intimidation of a witness or juror;
  • the court before which that person was convicted, "certifies" in accordance with section 54(2) of the Criminal Procedures and Investigations Act 1996 that there is a real possibility that the acquittal resulted from the interference or intimidation; and
  • it would not, because of the lapse of time or for any other reason, be contrary to the interests of justice to take proceedings against the acquitted person for the offence of which she/he was acquitted. (Archbold 4 - 128a).

"Administration of justice" offences for these purposes are:

  • the offence of perverting the course of justice (Archbold 28 - 1);
  • the offence of intimidation of witnesses, jurors or others, under section 51(1) of the Criminal Justice and Public Order Act 1994 (Archbold 28 - 142); and
  • an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911 (Archbold 28 - 152).

Under section 54(3) and section 55, where a court provides a certificate of tainted acquittal, an application may be made to the High Court for an order quashing the acquittal.

The High Court will make an order if:

  1. it appears likely that the acquitted person would not have been acquitted were it not for the interference or intimidation;
  2. it would not be contrary to the interests of justice to take proceedings against the acquitted person;
  3. the acquitted person has been given a reasonable opportunity to make written representations to the court; and
  4. it appears likely that the conviction for the administration of justice offence will stand.

Note: These provisions only apply in relation to acquittals in respect of offences alleged to have been committed on or after 15 April 1997 (Archbold 4 - 128a).

Procedure

Certification of tainted acquittal

A certification of tainted acquittal by either a magistrates' court or the Crown Court shall be made at any time following conviction, but no later than immediately after the court sentences or otherwise deals with the convicted person (Criminal Procedure Rules 2010, Part 40).

A prosecutor in the magistrates' court or prosecuting advocate in the Crown Court should therefore at that time be in a position to remind the court of its powers and to otherwise assist with information in relation to the original case. This should include the name and address of the original prosecutor and of the acquitted defendant.

Levels of decision making

The decision to seek "certification" should be referred to the CCP/Legal Director.

Timing

Once the court has "certified" in accordance with section 54(2) of the Criminal Procedure and Investigations Act 1996, the prosecution may apply for the acquittal to be quashed. Applications must be made within 28 days of expiry of the period allowed for giving notice of appeal or for the determination of an appeal in respect of the administration of justice offence.

Application to the High Court

A prosecutor makes an application for an order quashing an acquittal to the High Court, by way of an originating motion that shall be issued out of the Crown Office. The application shall be accompanied by:

  • an affidavit that addresses the conditions set out in section 54 of the 1996 Act;
  • a copy of any relevant record of court proceedings which the prosecutor wishes to place before the single judge; and
  • a copy of the certification under section 54(2) of the 1996 Act.

As to the procedure for obtaining the quashing of an acquittal under section 54(3), see Civil Procedures Rules 1998 (S.1. 1998 No. 3132), Schedule 1 RSC. ORD.

Reference should also be made to the Magistrates' Courts (Criminal Procedure and Investigations Act 1996) (Tainted Acquittals) Rules 1997 (Stones 1 - 6529 to 6538) and similar Crown Court Rules (The Crown Court (CPIA 1996) (Tainted Acquittals Rules 1997) (S.1. 1997 No. 1054)) (Archbold 4 - 128 e - h).

Strict time limits apply in relation to the application to the High Court, as imposed by Order 116 of the Rules of the Supreme Court 1965.

Action to be taken after the High Court quashes an acquittal

The acquitted person should be charged for the original offence, which should be proceeded with as though it is a fresh charge.

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Re-trial under Part 10, Criminal Justice Act

Guidance

Part 10 of the Criminal Justice Act 2003 reforms the law relating to double jeopardy. It allows re-trials in respect of a number of very serious offences, where new and compelling evidence has come to light.

Part 10 of the Criminal Justice Act 2003 applies where a person has been acquitted of a qualifying offence on conviction in England and Wales, on appeal against a conviction, verdict or finding in proceedings on indictment in England and Wales, or on appeal from a decision on such an appeal.

Refer to Retrial of Serious Offences, elsewhere in the Legal Guidance.

Procedure

Application for re-trial of serious offences under section 76(3) of the Criminal justice Act 2003 (double jeopardy case) should be referred to the Appeals Unit, Special Crime Division.

The Consent of the DPP

Where Part 10 of the Criminal Justice Act 2003 requires the consent of the DPP, it must be given personally in writing, i.e. not by the prosecutor on the DPP's behalf.

Such personal consent is required in two circumstances:

  • to authorise a re-investigation of an acquitted person under section 85; and
  • for a prosecutor to apply to the Court of Appeal to quash the person's acquittal.

The list of "qualifying offences" is in Part 1 of Schedule 5 to the Criminal Justice Act 2003. Refer to Retrial of Serious Offences, elsewhere in the Legal Guidance.

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Custody Time Limits: Cessation on Re-trial

In the Crown Court, custody time limits cease to apply once a jury is sworn in. If the trial is subsequently aborted, custody time limits do not apply to the period between that trial and a re-trial: R v Crown Court at Leeds, ex parte Whitehead [1999] EWHC Admin 557.

In ex parte Whitehead Auld LJ said that in the event of a trial aborting, the trial judge could, and should, be vigilant to protect the interests of the accused in custody by taking steps to fix a speedy re-trial or, if there were difficulties with that, by considering the grant of bail or even staying the prosecution as an abuse of process.

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