We have covered here how juries are (supposed) to come to their decision. But what happens if a ‘Watson Direction’ has been given and the jury still can’t reach a verdict?
What happens if a jury can’t agree?
If this happens, then the jury will be described as ‘hung’. When it becomes clear (usually by the Judge asking) that the jury won’t be able to reach a verdict, then they will be discharged. It will often happen because the jury have sent the judge a note saying that, for example, they have had several votes and they are deadlocked at 6 for Guilty and 6 for Not Guilty and they cannot see that changing. That is what an advocate would refer to as a ‘numbers note’. The Judge will not read out the voting figures to the Court (as jury deliberations are supposed to be secret), but will merely say something along the lines of the fact that he or she has had a note and can’t reveal the conents (lawyer’s code).
If the news reports that a jury has been discharged, it may mean because of this, or it may be because of other reasons (one example being that the defendant has been taken seriously ill and so the trial cannot continue).
Does this happen often?
No is the short answer. The exact number of times this happens does not appear to have been published in recent years. We know that there were 116 in 2009 (out of, allegedly, 16,718 – slight note of caution : both of these figures seem low), but that the numbers were rising.
It is far more common that a jury is discharged for other, administrative, reasons as set out above.
What happens then?
A jury being discharged does not count as a not guilty verdict, so the double ‘jeopardy rule’ will not apply. This means that the Prosecution can put the defendant on trial again. They do not have to do so however and it is a matter for the Prosecution after having looked at all the factors.
The CPS have helpfully set out their policy as to what factors they look at :
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.
No one factor of those set out above is determinative (unless there is fresh evidence suggesting that the defendant is innocent – this does not happen very often) and it is a balancing act. In practice, the most important factor would be the seriousness of the case – on a charge of murder it is very likely that there will be a re-trial, if the matter is a minor one (such as shoplifting), then they leave it at that and ‘offer no evidence’ meaning that the defendant is acquitted on the direction of the Judge (known as a Not Guilty verdict under s17 after s17 Criminal Justice Act 1967). This has the same effect as, and is as ‘good’ as, a verdict of Not Guilty from a jury.
But if the jury can’t agree, doesn’t that mean they are not sure – so the defendant should be acquitted?
This is an interesting question. Conceptually, there is a case to be made for that (it would also preclude majority verdicts for the same reason). But, the law requires (if there are the full complement of 12 jurors) at least 10 jurors to be sure of guilty before being convicting. A hung jury doesn’t mean that the individual jurors were not sure, but that some of them were sure and some not. As a safeguard against arbitrary verdicts, a simple majority is not enough, you need to get 10 on board for the same verdict.
So, if six are sure of guilt, but six not sure, then you will have a hung jury. If all 12 are unsure of guilt, then the verdict is not guilty.
What if the jury at a re-trial can’t agree – can they keep on re-trying the defendant forever?
This is obviously fairly unlikely, but it does happen. There is a convention that the Prosecution get two goes and then that’s it. If they can’t persuade two juries that a defendant is guilty, then they offer no evidence (as set out above).
This is not a fixed rule of law – Parliament has not set out in an Act of Parliament that this is the case. For that reason, there is no absolute bar on the CPS having a third go.
One example of this is the case of Bell  EWCA Crim 3. The Court did note (para 46) that “We doubt the value of offering further guidance on the circumstances in which a second re-trial may be appropriate. 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. 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.“