Image courtesy of www.futurity.org
The first trial and the jury’s questions
On 5 February 2013, Vicky Pryce stood in the dock at Southwark Crown Court, charged with perverting the course of justice. Her ex-husband, Chris Huhne, had pleaded guilty on rearraignment the previous day to the same offence. As has been well documented in the press, both Hunhe and Pryce accepted that Pryce had ‘taken’ Huhne’s penalty points for a speeding offence; Pryce pleaded not guilty on the basis of marital coercion.
The trial ran into its third week and the jury were sent out to consider their verdict. After almost 14 hours, they returned with a list of questions – a somewhat unusual occurrence in itself – which caused much speculation and debate, not least about the reliability of the jury trial as we know it.
The questions included ‘Can you define what is reasonable doubt?’, ‘Does the defendant have an obligation to present a defence?’, and perhaps most worryingly, ‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?’.
Mr Justice Sweeney sent the jury home for the evening and discussed with counsel the answers that he would give. Andrew Edis QC, prosecuting, asked for the jury to be discharged on the basis that the questions indicated that it was “ultimately unlikely” that any verdict could be said to be a safe and proper one.
Edis said: “Overall the picture is not reassuring as to the extent to which this jury has truly understood its task at this now very advanced stage of their deliberations. It’s surprising they are still struggling with this very basic concept of jury trial.”
The following morning, Mr Justice Sweeney answered the jury’s questions; he referred to the 17-page written directions he had provided to the jury before they retired. He then said:
“If for any reason one or more of you feel less than confident that you understand and are able to apply my directions of law, then it would be wholly wrong for any juror in that position to reach a verdict one way or the other.”
If after further consideration you find yourselves in a position that you are simply not able to agree, no matter how much longer you continue to debate and that’s going to remain the position then you must, of course , have the courage to say so by your foreman sending me a note to that effect.”
The jury subsequently (after more than 15 hours considering their verdict) passed a note to the Judge stating that it was “highly unlikely” that they would reach a majority verdict (the majority direction being given some hours earlier).
Undoubtedly, some of the questions showed a lack of understanding. I happen to think that is not necessarily a problem and support the view that David Allen Green proffers in The Observer; the jury should be commended for daring to ask questions. However, as I said to David on Twitter, I would prefer a jury who listened attentively in the first place; as Sweeney J stated, all of the questions were answered in his written directions.
Discharging the jury
In response to the jury’s note indicating that they were unable to reach a verdict, Mr Justice Sweeney said:
“I have received your note which indicates that it is ‘highly unlikely’ that you are going to reach even a majority verdict. I am grateful for that.
“Against the background of the length of time that you have been in retirement already, I have decided therefore, and it is my decision one way or the other, that I must discharge you from any further deliberations.
“That means that your role in this case is now over.”
After the jury had left court, Mr Justice Sweeney said,
“In 30 years of criminal trials I have never come across this at this stage, never.” and stated that the jury had shown a “fundamental deficit in understanding” of its role.
The prosecution quickly indicated it’s intention to seek a re-trial.
Despite Sweeney J’s decision, there was a feeling that his comments (when answering the jury’s questions) relating to the jury being unable to reach a verdict and having the ‘courage’ to indicate so were a thinly veiled encouragement to do so. This was reinforced by his comments (recited above in part) to the effect that the jury had not grasped the fundamentals of their role – a concern for any judge, defence or prosecution advocate.
Where a jury cannot agree on a verdict, the prosecution are entitled to seek a re-trial. In fact there is a presumption that they will do so.
CPS Guidance suggests that the following will be considered when determining whether a re-trial is sought:
a) The merits of the case (realistic prospect of conviction, availability of witnesses etc.)
b) Likely reasons for the jury’s failure to reach a verdict (was the failure ‘perverse’?)
c) The public interest in seeking a verdict (seriousness of the offence, likely sentence if convicted, consequences of not proceeding etc.)
d) Interest/views of the victim (obviously not relevant here)
e) Views of trial judge, prosecuting counsel and the police
What is the situation if a second jury cannot agree on a verdict in Vicky Pryce’s case?
A second re-trial?
It is common practice that the prosecution offer no evidence against a defendant where two juries have failed to reach a verdict…but no more than a convention, Bowe v R 2001 6 Archbold News 3 per Lord Bingham.
His Lordship continued to state that whether a second re-trial would be oppressive and unjust depends on a dispassionate assessment of how the interests of justice are best served. He also stated that ‘full account must be taken of the defendant’s interests’.
In R v Bell 2010 EWCA Crim 3, the court, led by the Lord Chief Justice, said that a second retrial should only be sought in a small number of cases involving a crime of extreme gravity which had undoubtedly occurred and in which the evidence that the defendant committed it on any fair minded objective judgement remained powerful.
CPS Guidance reflects the authorities listed above and lists examples of witness interference and additional evidence not available at earlier trials as exceptional circumstances.
Returning to Pryce, whilst it may be possible to argue that there are exceptional circumstances, it is hardly an easy case to make and it may be that the prosecution decide it is an inappropriate course to take.
With that in mind, was it an error of judgement to discharge the jury for failing to reach a verdict as opposed to acceding to Andrew Edis QC’s submission that as the questions posed by the jury showed a fundamental misunderstanding of the role and function of a jury, no verdict could be said to be a proper one?
Time will tell.