Jury trial procedure. Verdicts Flashcards
Retirement of Jury
The principle that governs the keeping of the jury during the period between the close of the judge’s summing up and their returning to court to announce their verdict was succinctly stated by James LJ in Alexander ‘once the jury retires to consider their verdict it should not separate, one from another and from the jury bailiffs. They must remain in the charge of the court through the bailiffs throughout.’ The purpose of this is to ensure that nobody interferes with the jury while they are considering their verdict.
Questions from the Jury
The jury are permitted to ask questions of the judge during their retirement. The normal method of so doing is to pass a note to the jury bailiff who takes it to the judge.
In Zulhayir the Court of Appeal stressed the need to time and date such notes. The procedure to be adopted in answering such questions was set out in Gorman
The object of the procedures is:
(a) to remove any suspicion of private or secret communication between the court and jury, and
(b) to enable the judge to assist the jury properly on any matter of law or fact which appears to be troubling them.
Lord Lane set out three propositions to assist judges who receive a note from a jury who have retired to consider their verdict
First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court.
Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.
Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures … then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed.
In Innsthe Court of Appeal reminded judges that they should normally share the content of jury questions with counsel, and invite their view, before answering them. This was restated in APJ, where it was observed that the failure of the judge to share a note from the jury in retirement requesting the opportunity to examine an important exhibit was a material irregularity. It deprived the parties of the chance to make submissions and to ensure the jury were properly directed as to their approach.
Majority Verdicts
At common law, the verdict of a jury had to be unanimous. This was qualified by what is now the Juries Act 1974, s. 17
By s. 17(1) some majority verdicts are permissible, subject to certain conditions being satisfied.
Time Requirement
A majority verdict may not be accepted unless the jury have been considering their verdict for such period as the court considers reasonable having regard to the nature and complexity of the case, being in any event a period of not less than two hours.
Any period during which the jury return to court to ask a question of or receive a communication from the judge should be included when computing the two hours.
Time spent not actually deliberating, for example in making their way to the jury room and electing a foreman, is catered for by CrimPD 8.6.3, which states that the jury should be allowed at least two hours and ten minutes for deliberation before the majority direction is given. CrimPD 8.6.5 addresses the considerations to be applied by a trial judge as to when to take any unanimous verdicts before giving the majority direction for the remaining counts.
Minimum Number for Acceptable Majority
By the Juries Act 1974, s. 17(1), the minimum majorities permissible are 11–1 or 10–2, or (in the case of a jury from which one or more of the original jurors have been discharged) 10–1 or 9–1. A jury reduced to nine must be unanimous.
Statement of Size of Majority and Minority in Open Court
If (and only if) the verdict is guilty, the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the verdict.
Since stating the size of a majority for conviction is expressed as a pre-condition of the court accepting the verdict, failure to comply with s. 17(3) will result in any purported conviction being quashed.
However, it is sufficient for compliance with s. 17(3) if, as happened in Pigg the foreman states the number in the majority leaving the size of the minority to be inferred by the simplest of arithmetic. In Pigg, Lord Brandon of Oakbrook (with whose speech all the other Law Lords concurred) stated the position thus:
… compliance with the requirement of section 17(3) of the Act of 1974 is mandatory before a judge can accept a majority verdict of guilty; but the precise form of words used by the clerk of the court when asking questions of the foreman of the jury, and the precise form of words used by the latter in answer to such questions, as long as they make it clear to an ordinary person how the jury was divided, do not constitute any essential part of that requirement.
Verdict of Guilty of an Alternative Offence
It is sometimes open to a jury to find the accused not guilty of the offence alleged in a count but guilty of some other alternative offence. This is commonly referred to as a verdict of guilty of a lesser offence.
At common law, a jury could find an accused guilty of a lesser offence if the definition of the greater offence charged necessarily included the definition of the lesser. However, the enactment of a number of statutory provisions has considerably broadened the situations in which alternative verdicts are now permitted.
Although the decision of the House of Lords in Saunders demonstrates that there is still a residual role for the common law to play, this discussion of alternative verdicts proceeds on the basis that the law is now to be found in statute.
General Rule
The general provision on the availability of alternative verdicts is contained in the CLA 1967, s. 6(3), which provides as follows:
Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.
There are thus two principal situations covered by s. 6(3). One is where the offence charged expressly includes an allegation of another indictable offence; the other is where it impliedly includes such an allegation.
Judge’s Judgement in Directing Jury as to Alternative Offences
The judge in summing up is not obliged to direct the jury about the option of finding the accused guilty of an alternative offence, even if that option is available to them as a matter of law.
If, however, the possibility that the accused is guilty only of a lesser offence has been obviously raised by the evidence, the judge should, in the interests of justice, leave the alternative to the jury. This is the case even if neither prosecution nor defence counsel wishes the alternative offence to be left to the jury.
It is important for the court to leave an alternative which does not require proof of specific intent where such intent was required for the charge on the indictment.
The court should not take the initiative to add an alternative charge after the accused has given evidence.
Returning the Verdict
The jury’s verdict is delivered in open court, in the presence of the accused (and this cannot occur if the accused has died during the jury’s retirement.
The invariable practice is for the person the jury have selected to be their foreman to state in response to questions from the clerk of court whether they find the accused guilty or not guilty.
The jury are entitled to return a partial verdict in the sense of finding an accused guilty on one count but not on others, or finding one accused guilty but another not. They are also entitled to find an accused guilty in respect of some only of the allegations set out in the particulars of a count, as when a count for theft specifies several items as the subject-matter of the charge and the jury are satisfied that the accused stole some of them but are left in doubt as to others, where the jury sent a note asking the judge if they could return such a verdict and the Court of Criminal Appeal held that the judge’s affirmative answer was undoubtedly correct, even though the method by which he had communicated the answer was at fault).
Jury Unable to Agree on a Verdict
If the jury cannot agree on a verdict, the judge discharges them from giving a verdict.
As always when the jury are discharged, the accused is not acquitted but may be retried by a different jury. Whether to ask for a retrial is in the discretion of the prosecution. In the absence of exceptional reasons to the contrary, it is the practice to have a retrial following failure by one jury to agree. If a second jury also fail to agree, the prosecution would not usually seek a third trial but instead offer no evidence.
This convention was examined in Henworth and it was stated that it should not be elevated into a proposition of law. In some cases, a further trial might be proper, e.g., if a jury had been tampered with, or some cogent piece of evidence for the Crown had since been discovered. Whether it was an abuse of process for the prosecution to seek a further trial must depend on the facts, including:
(a) the overall period of the delay and the reasons for it;
(b) the results of the previous trials;
(c) the seriousness of the offence; and (possibly)
(d) the extent to which the case against the defendant had changed since previous trials.
