Defendants won’t be 'acquitted' if the Jury can’t reach a verdict

Wednesday 21 March 2018

A major overhaul to Jersey’s Criminal Justice System means defendants won’t be automatically acquitted of a crime if the Jury can’t reach a decision – but they won’t be put on trial again for the offence either.

For the last 150 years, a person appearing in court has been acquitted of a crime if a Jury can’t reach a unanimous or majority vote of 10 people - a system not followed by the majority of Commonwealth Countries including England and Wales.

But the Home Affairs Minister has removed this from the new Criminal Procedures Law, voted in yesterday by States Members, despite concerns from some that this could leave the offence 'hanging over' the defendant for the rest of their life. "No verdict is not fair for either side," Senator Ian Gorst commented.

The massive law overhaul replaces legislation dating back to 1864, to bring the island’s system in line with others. She also proposed the introduction of a court retrial which could be ordered by the Crown within seven days if they feel they can get a guilty verdict if given a ‘second chance’ in a bid to prevent 'hung juries'. That move was thrown out by politicians yesterday.

Although this is common in other Commonwealth justice systems - including the Isle of Man - the change spurred a lengthy debate which split States Members, with many questioning the term ‘innocent until proven guilty’.

Pictured: The debate over the massive criminal justice overhaul led many members to question the term 'innocent until proven guilty'.

A Panel tasked with reviewing the suggested law changes opposed the idea of retrials, with its Vice Chair, Deputy Sam Mézec questioning, “Why would you get a second bite of the cherry?” He explained that the prosecution’s job is to convince a jury that a person is guilty of a crime "beyond reasonable doubt."

Deputy Mézec added that the Home Affairs Scrutiny Panel had heard from court commissioners who raised issues surrounding media coverage of trials influencing a second jury, the cost implications of court, as well as the added pressure extra trials could have on the already busy court schedule.

Constable Chris Taylor followed, saying: “How many times does someone have to prove themselves innocent?”

But a question by Deputy Jackie Hilton to the Attorney General led him to reveal that the defendants in three major cases – including one of rape – had been acquitted of the crimes despite eight or nine people out of a jury of 12 reaching a guilty verdict. This seemed to change opinions amongst some States members.

Pictured: The States voted against the introduction of retrails if the jury can't reach a majority verdict, a system used in the majority of other Commonwealth countries.  

Both Jersey’s Chief Prosecutor Robert MacRae QC and the Home Affairs Minister told the Assembly that the retrials would only be a small number as experienced by other jurisdictions and that “retrials would be an exception rather than the rule.”

But this wasn’t enough to convince the majority of States Members - 26 of whom backed moves to scrap the idea of retrials, meaning that there will now be no verdict rather than an acquittal in the event of a 'hung jury'.

This wasn’t the only part of the new law that divided opinion. Moves to scrap the defendants' right to remain silent in cases against them, which has been criticised by The Law Society of Jersey, also caused concern.

The new law requires the defence to submit a statement which outlines the nature of their case and the facts they will use with it as well as any issues the defendant may have with the prosecutions facts.

Pictured: People accused of committing an offence still have the right to remain silent, but will need to summit a statement outlining the defence case under the new law. 

A number of States Members voiced their concerns that this goes against a person’s human right to remain silent and be presumed innocent, despite assurances from the Home Affairs Minister that defendants will still be able to decline to answer police questions during interview and not give evidence in court without it going against them in a trial.

Deputy Richard Renouf said he “couldn’t understand how these provisions are consistent with the right to silence” and Deputy Simon Breé likened the move to “diluting” that human right.

But the Attorney General explained that the defence case statement was in fact for the fairness of the defendant and will be rarely used in a trial, as seen in England in Wales.

He also explained that the defence case statement goes hand-in-hand with another part of the law, which means the Prosecution will have to disclose all unused material to the defence.

Pictured: The issue of disclosing unused material in a court case was highlighted earlier this year in the UK when the police and prosecution didn't show the defence's phone records, clearing a 22-year-old of rape. 

The issue that was highlighted in the UK earlier this year with the case of 22-year-old Liam Allen, who was on trial for 12 counts of rape and sexual assault. The trial collapsed and he was given an apology by Police and the prosecution after the defence weren't given phone records that would have cleared him of any wrongdoing.

The Crown in Jersey will now be obliged to disclose such materials by law after the new criminal justice law was voted through, largely unchanged, by a majority vote.