What happens when a jury cannot reach a verdict

ARTICLE

A jury must be given the time they need to reach a decision. A trial judge can misdirect the jury if they use a form of words that pressurise a jury into making a decision giving rise to potential points of appeal that the conviction has been rendered unsafe.

In the case of McKenna [1960] 1 QB 411, the trial judge told the jury that “if they didn’t reach a verdict in the next ten minutes, they would have to be kept all night.” In the case of Duggan [1992] Crim LR 513, the pressure from the judge was less overt when the jury made it known to the judge that many of them had childcare responsibilities and wished to sit until they reached a decision. The judge, in response, said he was prepared to give them until 17:00, which was held to impose an artificial pressure.

Judges are able to give what is called a Watson direction (Watson [1988] QB 690 (700)). The trial judge does not have to give a Watson direction, but if it is given, the timing of the direction is a matter for the trial judge (Pinches [2010] EWCA Crim 2000). An example direction is given below: 

Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only to as individuals but collectively. This is the strength of the jury system.

Each of you takes into the jury-box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion, argument, and give and take within the scope of your oath. That is the way in which agreement is reached.

If, unhappily, you cannot reach an agreement you must say so.

In circumstances where the jury cannot reach a decision on the charge against an accused, the trial judge will thank the jury and discharge them from their duty.

It is for the CPS to take account of the public interest before deciding whether they wish to offer no evidence or request from the judge a retrial. At the prosecutor's request, the judge must then consider whether the second trial would be oppressive or unjust. 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 fails to agree, the prosecution would not normally seek a third trial but instead offer no evidence. A third 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 and in which the evidence that the defendant committed the crime, on any fair-minded objective judgment, remains very powerful’ R v Bowe [2001] UKPC 19 and R v Bell [2010] 1 Cr App R 27 (407).

Citation: Jacklin, D. 2021. What happens when a jury cannot reach a verdict. Water Incident Research Hub, 1 January.