However, if a trial is heard before an even number of magistrates, there is a possibility that they will be equally divided about the verdict.
In such circumstances, the court of its own motion should adjourn the case for re-hearing by another bench of magistrates. The reviewing lawyer should confirm that it is appropriate to allow the case to proceed to a re-trial. Review should take into account the factors listed above where a jury fails to agree on a verdict. The further review of the case should be completed within 14 days of the end of the original trial, or 7 days if the defendant is in custody.
Where the Court of Appeal allows an appeal against conviction, it may order the appellant to be re-tried. Section 7 of the Criminal Appeal Act provides that the court determines whether a successful appellant should be re-tried on a fresh indictment preferred by direction of the court.
The court should consider this option of its own motion. However, in cases where the court appears not to be considering ordering a re-trial and there are clear grounds for submitting that the interests of justice would be best served by a re-trial, it may be appropriate to ask the court to consider ordering a re-trial.
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 the arraignment takes place within 2 months, and that the court knows that this is the case.
If a defendant has not been arraigned within 2 months they may apply to the Court of Appeal to set aside the order for the re-trial, and for a direction that the Court of Appeal enter a verdict of acquittal. Sections 54 - 57 of the Criminal Procedure and Investigations Act CPIA enable the High Court to make an order quashing an acquittal in circumstances where the acquittal resulted from interference with, or intimidation of, a juror or witness or potential witness.
In such circumstances, an acquitted person can be re-tried for the original offence. Under section 54 3 and section 55 CPIA , where a court provides a certificate of tainted acquittal, an application may be made to the High Court for an order quashing the acquittal.
The High Court will make an order if:. Note: These provisions only apply in relation to acquittals in respect of offences alleged to have been committed on or after 15 April A certification of tainted acquittal by either a magistrates' court or the Crown Court shall be made at any time following conviction, but no later than immediately after the court sentences or otherwise deals with the convicted person.
A prosecutor in the magistrates' court or prosecuting advocate in the Crown Court should therefore at that time be in a position to remind the court of its powers and to otherwise assist with information in relation to the original case.
This should include the name and address of the original prosecutor and of the acquitted defendant. The decision to seek "certification" should be referred to the Chief Crown Prosecutor or Head of Division. Once the court has "certified" in accordance with section 54 2 of the Criminal Procedure and Investigations Act , the prosecution may apply for the acquittal to be quashed. Applications must be made within 28 days of expiry of the period allowed for giving notice of appeal or for the determination of an appeal in respect of the administration of justice offence.
A prosecutor makes an application for an order quashing an acquittal to the High Court, by way of an originating motion that shall be issued out of the Crown Office. The application shall be accompanied by:. Strict time limits apply in relation to the application to the High Court, as imposed by Order of the Rules of the Supreme Court The acquitted person should be charged for the original offence, which should be proceeded with as though it is a fresh charge.
Part 10 of the Criminal Justice Act reforms the law relating to double jeopardy. It allows re- trials in respect of a number of very serious offences, where new and compelling evidence has come to light. Part 10 of the Criminal Justice Act applies where a person has been acquitted of a qualifying offence on conviction in England and Wales, on appeal against a conviction, verdict or finding in proceedings on indictment in England and Wales, or on appeal from a decision on such an appeal.
Application for re-trial of serious offences under section 76 3 of the Criminal justice Act double jeopardy case should be referred to the Appeals and Review Unit, Special Crime and Counter Terrorism Division. In the Crown Court, custody time limits cease to apply once a jury is sworn in. If the trial is subsequently aborted, custody time limits do not apply to the period between that trial and a re- trial: R v Crown Court at Leeds, ex parte Whitehead [] EWHC Admin In ex parte Whitehead Auld LJ said that in the event of a trial aborting, the trial judge could, and should, be vigilant to protect the interests of the accused in custody by taking steps to fix a speedy re-trial or, if there were difficulties with that, by considering the grant of bail or even staying the prosecution as an abuse of process.
The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases. A new trial must be brought within 90 days of the date the trial court declared a mistrial. If the prosecution does not bring a new trial within 90 days, the defense attorneys may inform the court that the time to bring a new trial has expired.
The court must then hold a hearing to determine if the state criminal procedures provide any reason for a delay in seeking a new trial under the circumstances. If there is no allowable reason for delay, the court must order a trial to proceed within 10 days.
If the defendant is not brought to trial within the day period, the defendant may move to have the charges dismissed. The Supreme Court of Florida has ruled that under certain limited circumstances, the double jeopardy clause contained in the United States and Florida Constitutions may apply to cases ending in a mistrial.
The double jeopardy clause prevents a defendant from being tried twice for the same offense. However, if the defendant objects to the mistrial, the prosecution must show a manifest necessity existed in the proceeding prior to the mistrial in order to try the defendant again. Finally, where the mistrial is the result of judicial or prosecutorial misconduct, retrying the case is generally prohibited.
While a mistrial prevents a guilty verdict, it is also not a declaration of innocence. Yet, the declaration of one can provide a defendant with several opportunities that the defense can take advantage of.
First, the prosecution must decide whether to reinstate the charges against the defendant and seek a new trial. If the mistrial occurred after the jury was unable to reach a verdict, the defense counsel may be able to convince the prosecutor the evidence is insufficient to retry the defendant. Second, when a defendant receives a new trial, a new jury is selected and the entire proceeding starts over.
Although the question in Perez was indeed whether a defendant could be retried following a hung jury, nowhere in the unanimous opinion authored by Justice Story, is either double jeopardy or the fifth amendment mentioned. This failure to refer to the Constitution was not inadvertent.
In , the hung jury question did not implicate the double jeopardy clause of the fifth amendment. At that time, the Court adhered to the English common law view that jeopardy does not attach until a verdict is rendered.
Findlater continues :. Since Perez, however, the Supreme Court has held that jeopardy attaches before a verdict is rendered—specifically when the jury is impaneled and sworn. In doing so, it created an issue that did not obtain when Perez was decided: the effect of the double jeopardy clause on the retrial of cases that abort before verdict.
Reference: Janet E. It is questionable whether or not retrial after a hung jury is Constitutional. Nonetheless, in the United States today, it is generally permitted. If a mistrial occurs due to a hung jury, the prosecutor may decide to retry the case. A judge may decide to disallow this in some cases, but the prosecutor is usually allowed to proceed. Because the case can be retried, a hung jury caused by one or more conscientious objectors to the law who voted not guilty even though they believed the law was broken does not constitute jury nullification in the strictest sense of the term.
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