The second retrial

by Edward Fenner

The Second Retrial

I was instructed a couple of years ago to defend a man charged with offences of a serious sexual and violent nature. By the time I was involved, he was already facing his second trial, having previously been represented by different counsel. During his first trial, the jury were unable to reach verdicts on any of the counts before them.

It has always struck me as almost customary that the crown seeks a retrial, particularly in more serious cases, but what happens when two juries are unable to reach verdicts? In my case, the jury acquitted of the charges alleging violence, but failed to reach verdicts on the sexual matters. The prosecution sought a second retrial on the remaining sexual offences.

Presumption against a second retrial

There is no principle of law for the prosecution to simply offer no evidence after two juries have failed to reach verdicts. Such practice has been referred to as a convention in various authorities. But even a convention requires some precision, under European Law[1].

There is a presumption against a second retrial, overcome only if the court is satisfied that it is in the interests of justice so to do[2].  Often an advocate’s best approach will be to consider putting forward an abuse-of-process argument.

The court has the power to stay proceedings as an abuse in two general categories: where the defendant cannot have a fair trial; or where it would be unfair for the accused to be tried. When considering the grounds against a second retrial, an application may often rely on the second limb; namely that it is unfair to try the accused in these circumstances.

The general principles for the court to consider are set out by Lord Dyson in Warren v Att.-Gen. for Jersey [2011] UKPC 10: ‘the court’s sense of justice and propriety is offended if it is asked to try the accused in the particular circumstances of the case’:

The balance must always be struck between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute.

Second retrial as abuse of process

Their Lordships in Warren also make clear that they are reluctant to impose rigid boundaries for categories of abuse. The abuse is largely fact and case specific.

Lord Justice Kennedy in R v Frank Henworth [2001] 2 Cr. App. R. 4. set out factors for courts to consider where it might be an abuse for a second retrial to take place. These include delay, the results of previous trials, the seriousness of the offence and the extent that evidence may have changed[3]. However, the court emphasised that the question whether to stay proceedings would largely rest on the specific facts of individual cases.

The Lord Chief Justice considered the question of second retrials in the leading authority of R v Bell [2010] EWCA Crim 3, highlights of which I set out below:

  1. ‘The questions whether the public interest required a second re-trial and whether such a re-trial would be oppressive and unjust were inextricably linked’. [paragraph 25]
  2. ‘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 in which the evidence that the defendant committed the crime on any fair minded objective judgment remains very powerful’. [paragraph 46]
  3. ‘We shall confine ourselves to reminding the Crown that the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution’. [paragraph 46]

Exceptional circumstances are required to justify a third trial

The CPS in their Legal Guidance to Prosecutors have adopted all these principles. They maintain clear guidance to satisfy the public interest in avoiding arbitrary – or the appearance of arbitrary – decisions. Before a decision is made, the guidance suggests that the views of the victim, police, counsel and any expressed by the trial judge are taken into account, as well as consideration of the merits of the case, likely reasons for the jury’s failure to reach a verdict and the public interest.

The crown must satisfy the court that a full review and reasoned decision has taken place prior to inviting a second retrial. The crown’s own guidance provides that exceptional circumstances are required to justify a third trial. Suggestions of what factors might justify a third trial are given as jury interference or fresh evidence.

The public interest consideration is not the sole domain of the CPS. It is as much for the court to contemplate as it is for the CPS. It is the court’s consideration of the public interest point that will allow the advocate to expand upon her submissions into areas otherwise left untouched. The court should consider the following points:

  • did both juries hear the same evidence?
  • is there fresh evidence to justify a third trial?
  • were the issues too complicated for a jury to consider?
  • and the impact on the defendant.

The impact on the defendant

What about the impact on the defendant of a third trial? Often, given the serious nature of the charges, a defendant may have waited a considerable time on remand in prison awaiting trial. Will the effect of a second retrial be an ordeal too far for a defendant? Consider the nature of the case and ensuing impact both emotionally and physically.

Had the defendant given evidence in both previous trials, are they likely to do so again. Defendants often do not have the same level of assistance when giving evidence as many witnesses do. For example, the assistance provided by a memory refreshing document or a pre-recorded achieving-best-evidence video. Lord Diplock acknowledged such impact in Reid v The Queen [1980] A.C. 343:

Any criminal trial is to some extent an ordeal for the defendant which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so.

The lack of any fresh evidence may assist the court when considering the public interest point. Has there has been a substantial investigation by the police, despite which there is no new evidence of guilt?

The presumption against a second retrial should only be overcome in cases that involve crimes of extreme gravity, with powerful evidence of guilt and where the interests of justice allow such a course of action. As for what defines crimes of extreme gravity, I will leave you with the comments from the Judgment of Lord Justice Treacy in the recent case of R v Burton [2015] EWCA Crim 1307:

“it seems to us that a particularly strong justification will be required for a case to satisfy a test of extreme gravity if there has not been a murder”.

In my case, the defendant did not face a second retrial. But with ever-increasing pressure on the CPS to achieve results, having to deal with such arguments in the future may well become more commonplace for advocates.

Edward Fenner

[1] ECHR – Arcticle 6 – Any law which may lead either to an interference with liberty or a finding of guilt should be sufficiently accessible and precise. (Sunday Times v. U.K. (1979) 2 E.H.R.R. 245, 271).

[2] R v Ali [2011] EWCA Crim 1260 at paragraph 120.

[3] Paragraph 26