Examining the discharge of the jury in R -v- Vasiliki Pryce and section 17 Juries Act 1974
It was Lord Denning, perhaps the greatest law-making judge of the last century as well as the most controversial, who in Ward v James  1 Q.B. 273 said, “It (trial by jury) has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime or when in a civil case a man’s honour or integrity is at stake… then trial by jury has no equal.”
Yesterday the jury trying ex-minister Chris Huhne’s ex-wife Vicky Pryce has failed to reach a verdict on a charge of perverting the course of justice relating to speeding points she took on his behalf 10 years ago. Ms Pryce now faces a retrial before a new jury on Monday. She denied perverting the course of justice, saying that her husband had coerced her into taking the points.
After the jury was sent away to consider their verdict, and whether or not they accepted Ms Pryce’s defence of marital coercion, they sent a list of questions to the judge that they wished answered in order to help reach their verdict. The copy of the list of questions can be found here at the Jack of Kent blog. The BBC’s legal affairs correspondent Clive Coleman said it was unusual for a jury to ask so many questions when trying to reach a verdict, especially one in which they had asked whether they could speculate on what had been in the defendant’s mind. He said another question was: “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?” The judges responses to the jury’s questions can be found here in an article by Caroline Davies in The Guardian.
Mr Justice Sweeney, had earlier on Wednesday given the jury a majority direction, telling them he would accept a verdict on which at least 10 of the 12 jurors agreed. Majority verdicts as opposed to unanimous verdicts are permitted pursuant to section 17 of the Juries Act 1974. Most of the general public would find this highly unusual under the misconception that all jury verdicts must be unanimous and that the reasonable doubt of one juror should be enough to enable the return of a not guilty verdict perhaps thanks to too many American legal dramas.
In R v Vasiliki Pryce Mr Justice Sweeney later received a note from the jury saying it was “highly unlikely” they would be able to reach a majority verdict. He then told the jury: “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.”
Further to the CPS’ Legal Guidance on Retrials there is a presumption that the prosecution will seek a re-trial where a jury fails to agree on a verdict at the first trial. The following factors are to be taken into account when considering a re-trial under these circumstances:
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.
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): If the evidence is sufficient to justify a prosecution, the interests of the victim are an important consideration when deciding whether a prosecution is needed in the public interest. Many of the factors in favour of prosecution flow directly from the impact of the offence on the victim. The CPS Core Quality Standards at Standard 8.1 reinforces the commitment given at paragraph 4.18 of the Code for Crown Prosecutors. Standard 8.1 reads:
“When proposing to stop a case, or to alter the charges substantially, we consult the police or other investigators, unless it is impracticable to do so, before reaching a final decision. When the proposed decision is based on public interest grounds, we take into account any views expressed by the victim about the impact that the offence has had. In appropriate cases, for example, a case of homicide or where the victim is a child or an adult who lacks capacity as defined by the Mental Capacity Act 2005, prosecutors should take into account any views expressed by the victim’s family.”
5. Any views expressed by the trial judge: Judicial indications may assist in the efficient management of a case going forward to a retrial.
6. Prosecuting Advocate’s opinion: The responsibility for continuing with proceedings lies with the CPS. If after reviewing a case fully in accordance with the Code for Crown Prosecutors the lawyer considers that the proceedings should not continue, the case should be terminated at the earliest possible opportunity. The opinion of the advocate may be helpful in reaching such a decision based on his previous experience.
7. The views of the police: The police should always be consulted before the termination of a case, no matter which method of termination is to be used. This provides an opportunity for the police to provide additional information, which may affect the prosecutor’s decision: for example, additional witness statements which resolve evidential problems. Equally, the police may have background information not included on the file that may have a bearing on the public interest.
But what happens if the new jury on Monday also fails to reach a verdict in the trial. Well where two juries fail to reach a verdict, the presumption is that the prosecution will not seek a third trial unless there are exceptional circumstances. There must be exceptional circumstances required for a third trial. Factors that might justify a third trial include jury interference (this may require further investigation for an offence of jury interference); and additional evidence that has recently come to light and was not available at earlier trials.
The case of R v Bell EWCA Crim 3 (2010) involved an appeal against conviction for murder, following a third trial. It was argued on behalf of the appellant that the third trial amounted to an abuse of process. The conviction was upheld. The Lord Chief Justice however provided words of caution in relation to the use of re-trials:
“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 a crime (again, as here), on any fair minded objective judgment remains very powerful.”
While those familiar with the American system might think the idea of a majority verdict goes against the ideas of justice, it was enacted to help prevent mistrials and hung juries. It also helps to ensure that no adverse pressure is imposed on a jury to swing a verdict one way or the other, otherwise known as ‘jury nobbling’. In R v McKenna  1 QB 411, the trial judge Stable J, threatened the jury members that if they did not return a verdict in the following 10 minutes they would be locked up for the night. Within the following six minutes the jury gave the verdict of guilty against the defendants, having spent the previous two and a quarter hours unable to agree on a verdict. On appeal the convictions were quashed because of a material irregularity in the course of the trial. The Court of Criminal Appeal said:
“It is a cardinal principle of our criminal law that in considering their verdict, concerning, as it does, the liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threat. They still stand between Crown and the subject, and they are still one of the main defences of personal liberty. To say to such a tribunal in the course of such deliberations that it must reach a conclusion with in ten minutes or else undergo hours of personal inconvenience and discomfort, is a disservice to the cause of justice…”
Needless to say, the result of Wednesday’s jury discharge does not particularly help either the prosecution or the defence. Both will have to resubmit their evidence before a new jury in a new trial and hope that they can sway the new panel one way or the other. The only advantage for the, Ms Pryce, as the defendant is that if her legal team can force the discharge of the second jury then they are unlikely to have to face a third.
Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.