Re-trials in the Crown Court

A re-trial is a trial taking place for following a previous trial to determine innocence or guilt. Re-trials are fairly rare and only occur in limited situations.

A number of steps will be taken during the original trial before reaching this drastic point. It is accepted that a re-trial should be avoided if at all possible. Not least, due to the fact a will take its toll on victims, the innocent defendant and the public purse and is highly undesirable but sometimes necessary:

A jury will always start out as a group of 12 members of the public, “jurors.” The minimum jurors permitted is 9 and so if jurors are taken ill as was common during the pandemic, it could cause havoc with trials being aborted. There may also be reserve jurors in the case of lengthy trials to guard against a situation when illness of jurors would risk the trial process continuing.

At the end of a trial, the trial judge will send the jury out of the court to deliberate and make a decision about the defendant’s guilt or innocence. They will be told that only a unanimous verdict can be accepted. This means that all 12 jurors must be on the same page and agree to find a defendant guilty or not guilty.

However, in certain circumstances, when a jury has been unable to reach a unanimous decision, the court can make a Majority Direction, which would allow the jury to reach a majority verdict. This is usually only if the jury has taken a lengthy period deliberating and being unable to get to a unanimous decision.

The trial judge will explain the basis a majority decision could be accepted. This depends on the number of jurors left at that point:

The term ‘hung jury’ relates to a situation where a jury fails to agree on a unanimous or majority verdict at the conclusion of a trial.

When asked to confirm the verdict, the jury will advise the Court that a decision cannot be made. The Judge may then discharge the jury as they cannot force the jury to return a verdict.

Once a hung jury is discharged, the usual practice is to repeat the trial with a new jury. The CPS will often be given 7 days to advise whether they wish to proceed to a re-trial.

CPS guidance suggests that if two juries fail to reach a verdict, the presumption is that a third trial would not be sought by the prosecution unless there are exceptional circumstances. The CPS would likely offer no evidence rather than commit to a third trial.

The High Court may quash an acquittal where it resulted from interference or intimidation of a juror or witness, and the re-trial will be for the original offence.

Following a conviction after trial in the Crown Court, it may be open to appeal the conviction to the Court of Appeal. The Court of Appeal may allow the appeal which could lead to an acquittal or may order that the appellant be re-tried in the Crown Court. Under section 7 of the Criminal Appeal Act 1968, the court may allow an appeal against conviction and if in the interests of justice to do so, may order a re-trial.

Previously the law prevented someone who has been acquitted or convicted of an offence to be re-tried for that same offence, colloquially known as “double jeopardy”. The murder of Stephen Lawrence was instrumental to changing the law on this. A second trial is now a possibility for serious offences such as murder when a defendant has been acquitted but only if “fresh and compelling” evidence is discovered at a later date. The Court of Appeal will make the determination as to whether the new evidence is a compelling indication of guilt. However the Court may also refuse to quash an acquittal if it is not in the interests of justice to proceed with a retrial.

Serious offences include murder, kidnapping, certain sexual offences and drug offences. No motoring law offences are included in the list of serious offences for the purposes of a retrial under this provision.