Re-trials

• Introduction
• Jury cannot reach a verdict or discharged
• Two juries unable to reach a verdict
• Magistrates cannot reach a verdict
• The Court of Appeal quashes a conviction

Introduction

The circumstances in which a re-trial might be necessary are where:

• a jury cannot reach a verdict
• a jury is discharged prior to the conclusion of their deliberations
• magistrates cannot reach a verdict
• the Court of Appeal quashes a conviction
• there is a tainted acquittal: the legal framework is in sections 54 to 57 Criminal Procedure and Investigations Act 1996 and Criminal Procedure Rule 27 applies
• a defendant is acquitted and it is proposed they are investigated or prosecuted for the same serious offence (“double jeopardy”): this is dealt with in the separate Retrial of Serious Offences prosecution guidance.

Jury cannot reach a verdict or discharged

The prosecution will apply the two-stage test in the Code for Crown Prosecutors when deciding whether or not to proceed to a second trial, when a jury has been unable to reach a verdict or a jury has been discharged. If there is sufficient evidence for a realistic prospect of conviction and a prosecution is required in the public interest the CPS will proceed to a second trial. If either stage is not met, no evidence will be offered.

As a matter of practice, it will ordinarily be the case that the prosecution will seek to proceed to a re-trial because a failure to reach a verdict or the discharge of the jury does not, without more, affect the application of the Full Code Test. If the Full Code Test is met the case should proceed notwithstanding the first jury could not reach a verdict. A Unit Head should approve the decision to seek or not seek a re-trial.

The views of the victim or victims as to a retrial will be important, and the views of the police, counsel and/or judge may also assist what is ultimately the prosecutor’s Code decision. In some cases those views will be relevant to the evidential stage. For instance, counsel’s assessment of how the evidence came out, and how the case could be put at re-trial. A combination of not guilty verdicts and discharge from considering other counts may require consideration of how the case is put at re-trial but is not insurmountable. The views of a victim or victims will likely to be highly relevant, by contrast, to the public interest stage.

Two juries unable to reach a verdict

If two juries have retired to reach their verdict and have had to be discharged having been unable to do so (as distinct from the discharge of a jury prior to considering their verdict) the prosecution must apply the relevant authorities as to whether the case should proceed to a third trial. There is a very clear presumption and expectation that there will not be a third trial save in very exceptional circumstances. The Lord Chief Justice, giving the judgment in Bell [2010] EWCA Crim 3, doubted the value of offering further guidance on the circumstances in which a second re-trial may be appropriate but made the following clear:

“…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 the crime (again, as here), on any fair minded objective judgment remains very powerful.”

Where the charge is not murder or violent crime, particularly strong justification is needed to satisfy the test of extreme gravity: Burton [2015] EWCA 1307.

Accordingly, a third trial is extremely rare and prosecutors will need to address “extreme gravity” and “evidence that the defendant committed the crime remains very powerful” in their decision. A Chief Crown Prosecutor must approve any decision to seek a third trial.

The prosecution should anticipate where possible that a jury will not reach a verdict and make the decision about a re-trial before they are discharged. If this has not been possible, an adjournment of no more than 7 days (if the defendant is in custody) or 14 days (if the defendant is on bail) should be sought and the decision reached by the adjourned hearing date. If no adjournment is permitted a new trial date should be set. The decision to prosecute remains under continuing review and can be further reviewed as necessary prior to the trial.

Magistrates cannot reach a verdict

It will be rare that a bench of magistrates will be unable to reach a verdict but this may happen where only two magistrates are sitting. The prosecution should seek a further trial before a different bench, again subject to further applying the two-stage Code test.

The Court of Appeal quashes a conviction

In this situation, the Court of Appeal will decide whether to order a re-trial. This situation is different from a jury being unable to reach a verdict or being discharged, not least because a sentence may already have been served. Nonetheless the prosecution should, where the Code test remains met, be prepared to make representations that a re-trial should be ordered.

The situation in which a re-trial may be ordered is set out in section 7 of the Criminal Appeal Act 1968. The supplementary provisions in section 8 are very important. 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. The CPS must ensure that a hearing at which arraignment takes place happens within 2 months, unless the Court of Appeal gives leave.