Bell, R. v

A second re-trial following two jury disagreements is not prohibited by law. The prosecution must initially decide whether a further trial serves the public interest, but the court retains control of its own process. The decisive question is whether the interests of justice justify a fair trial that is neither oppressive nor unjust.

The assessment requires a balance between the defendant’s interests and the public interest in convicting the guilty, deterring serious crime and maintaining confidence in criminal justice. The jurisdiction must be exercised with extreme caution and confined to the very small number of cases involving an extremely grave crime and very powerful evidence against the defendant.

The appellant was convicted of murder at Maidstone Crown Court and sentenced to life imprisonment with a minimum term of 28 years. The victim, a 17-year-old girl, was sexually assaulted and killed in a car-park stairwell associated with the appellant.

The conviction followed a third trial. The juries at the first two trials had failed to agree, and the trial judge rejected the appellant’s application to stay the proposed second re-trial as an abuse of process. On appeal, the appellant contended that the third trial was oppressive and unfair, particularly because the prosecution had refined its presentation of expert evidence. He also challenged the minimum term.

The central issue was whether the interests of justice permitted the second re-trial and whether its conduct had been unfair or oppressive.

1. Both appeals were dismissed. The conviction was safe, and the 28-year minimum term was upheld.

2. There is no rule of law preventing a second re-trial after two juries have failed to agree. The prosecution must first assess whether a further trial is in the public interest. However, once proceedings are before the court, the court has exclusive control of its process. The ultimate issue is whether the interests of justice justify a fair trial in circumstances that are neither oppressive nor unjust.

3. The court followed the approach stated by Forrester Bowe v The Queen. It requires an informed and dispassionate assessment in the widest sense. The defendant’s interests must be balanced against the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the criminal justice system.

4. The trial judge had correctly undertaken that assessment. The murder was of the utmost gravity and the evidence against the appellant was very powerful. The prosecution’s more focused presentation at the third trial did not create unfairness. Expert witnesses were entitled to investigate defence hypotheses first raised at the second trial, and the defence was not deprived of evidence or of the opportunity to cross-examine witnesses tendered by the prosecution.

5. The court added that the jurisdiction for a second re-trial must be exercised with extreme caution. It should be confined to the very small number of cases involving an extremely grave crime that has plainly occurred and very powerful evidence that the defendant committed it.

6. On sentence, the court applied Criminal Justice Act 2008 schedule 21. Although the victim was not particularly vulnerable solely because of her age, and the concealment was not sophisticated, the judge was entitled to consider the luring of the victim, her broader vulnerability and the concealment of her body. The minimum term broadly reflected the offence’s essential features.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence in [2010] EWCA Crim 3.
• Crown Court at Maidstone: after two earlier jury disagreements, the appellant was convicted of murder at a second re-trial and sentenced to life imprisonment with a 28-year minimum term.