CONCERNS over fairness, prejudice and an already “creaking” court system have resurfaced following fresh calls to reintroduce retrials in Jersey following hung juries.
The independent ‘Laws Review’, collated by Eleanor Laws KC, urged legislators to “reconsider the question of retrials when a jury cannot reach a majority decision, or when compelling evidence emerges post-conviction” – a recommendation that has reopened a deeply divisive debate first fought in 2018.
“During the evidence-gathering stage of my review, several key stakeholders raised the benefits of introducing retrials in appropriate cases,” wrote Ms Laws.
“When considering the fairness of this proposal, it is of note that the law relating to sexual offences and cases of domestic violence has developed since 2018, and there is a greater understanding of the gravity and prevalence of such offending.”
The review was published just days after Home Affairs Minister Mary Le Hegarat lodged sweeping proposals to overhaul Jersey’s criminal justice system – including plans to reintroduce retrials after a hung jury.
Treating a hung jury as equivalent to an acquittal, said Deputy Le Hegarat, is to “equate indecision with exoneration”, adding: “Ultimately, it must be recognised that deadlock is not a verdict.”
“It must be devastating for a victim to hear that the person who harmed them is not ‘guilty’, but neither are they not ‘not guilty’, but something in between, and there can never be any resolution to that,” the minister said.
But Advocate Olaf Blakeley said the Island’s courts are already under strain and cannot withstand the added burden.
“I really am not in favour of it,” he said. “I’m not saying never, but let’s forget about that until we get the already creaking and straining system sorted. It’s just going to increase workload again and it can’t cope with the workload that you’ve got at the moment.
“Get the courts ready so we can get cases really quickly, efficiently, and people aren’t waiting for ages and then maybe at that point [can we consider retrials] but it has to be under really, really stringent rules.”
Deputy Sam Mézec, who chaired the Scrutiny sub-panel which lodged the successful amendment to remove the retrial provision from the Criminal Procedure Law in 2018, said his panel had been concerned about breaching the spirit of “double jeopardy” – the long-standing protection against being tried twice for the same offence.
“The work my Scrutiny panel did on the Criminal Procedures Law back in 2018 helped drastically modernise how criminal trials operate and make the justice system fairer,” he said.
“But we felt at the time that there was a risk of invoking ‘double jeopardy’ if retrials were permitted, and that a second trial may not be as fair as the first, given that in a small island like Jersey it will be impossible to avoid the news coverage of the first case, and therefore harder to find an impartial jury.”
While he acknowledged that the L’Ecume II trial had “exposed difficulties with how things are working now”, Deputy Mézec cautioned against a hasty response.
“It is important that we do not throw the baby out with the bathwater,” he said, adding that States Members would need to examine the proposals carefully to ensure they “protect the right to a fair trial”.
States Members are due to debate the proposals next month.
