RETRIALS in instances where a jury cannot reach a verdict will be reintroduced following the L’Ecume II case where a decision was not reached on manslaughter charges.
The States Assembly yesterday approved a swathe of amendments to the Island’s Criminal Procedures Law – the most controversial of which would allow for a single retrial in cases where there is a hung jury.
Home Affairs Minister Mary Le Hegarat had previously cited the L’Ecume II case, where Commodore Goodwill second officer Lewis Carr was convicted of conduct endangering ships, structures and people at sea but the jury was unable to reach a verdict on the more serious manslaughter charges.
In 2018, an amendment to the law removed the capacity to retry such cases.
Speaking in the States Assembly yesterday, Deputy Le Hegarat said: “I am sure that the amendment in 2018 was well-intentioned and the Assembly of the day debated the matter in good faith and concluded retrials were not wanted.
“I understand why that decision was taken but I do not believe it was right.”
She added that the inability to retry cases was “not in the interests of justice” and cited other jurisdictions – including the UK and Ireland – where retrials are possible where there is a hung jury.
“If a jury cannot decide after being given all the necessary directions a reasonable period of time, that is not a not guilty verdict,” she said. “The actual outcome is that we don’t know if a person is guilty or not and with the law, in its current form, we can never try to find out.”
Attorney General Matthew Jowitt, who is a non-voting Member of the States who can offer clarity on points of law, pointed out that retrials are possible in Jersey in instances where new evidence comes to light or when a guilty verdict is successfully appealed by the defendant.
He cited the case of murderer Jamie Lee Warn, who was retried twice in 2021 after appealing his conviction.
“That [first] retrial was conducted in full glare of publicity and it was conducted, I am satisfied, entirely fairly. That resulted in a conviction. The defendant appealed and on a point of law was successful.
“The conviction was quashed and the court ordered a second retrial. That retrial again took place in the glare of publicity and it resulted in a guilty verdict.”
Mr Jowitt added that the courts are “equipped” for retrials to take place and said that any decision to retry a case would be taken based on whether the evidence was likely to secure a conviction and provided it remained in the public interest to do so.
Deputy Sir Philip Bailhache, a former Bailiff and senior prosecutor in the Island’s courts, spoke against the proposal.
“The issue is whether it is fair to give the prosecution a second bite of the cherry,” he said.
“My view is that it is not. I say that with experience of being a former prosecutor and former judge.
“I do not think it is fair because the prosecution has to prove its case beyond reasonable doubt. It has to persuade ten members of a jury of the guilt of the defendant and it seems to me that if it cannot do that then the defendant is entitled to be acquitted.”
Former Home Affairs Minister Helen Miles disputed the suggested that a hung jury should be deemed an acquittal, adding that the question of guilt is “still sitting there unanswered”.
Meanwhile, Deputy Montfort Tadier, who chairs the Jersey Human Rights Group, suggested that a retrial would unfairly adjust the balance in favour of the prosecution as a defendant may not be able to afford to defend himself twice, and said that the publicity surrounding the initial trial may make it difficult for a jury to try a case fairly.
He also questioned why, if the Home Affairs Minister is in favour of retrial, only one should be allowed.
“Surely the much simpler way to establish someone’s guilt is to recognise that a hung jury should be considered a verdict and that that verdict is that it has not been proven beyond all reasonable doubt and therefore, the prosecution loses and that individual must walk free?”
The removal of retrials was brought following a scrutiny sub-panel amendment in 2018.
Housing Minister Sam Mézec, who chaired that sub-panel, said that he had heard nothing which had persuaded him to change his views during the debate.
“I have misgivings about retrials taking place in a small community that has its own legal and media eco-system,” he said.
Members ultimately voted 27-15 in favour of retrials, with three abstentions.
Other amendments brought as part of the package included increasing the number of reserve jurors where trials are expected to last more than a week, allowing three Jurats to convene for Superior Number sentencings rather than the current requirement of five and allowing the Bailiff to decide solely on bail applications.
