Burton v R

A third trial after two full jury disagreements is exceptional. The court must make an informed, dispassionate and searching assessment of whether the interests of justice justify it. The assessment requires a fair trial free from oppression or injustice and takes account of both the defendant’s interests and the public interest.

The Bell characteristics of a crime of extreme gravity and very powerful evidence will usually determine the issue, although wider interests may exceptionally matter. The Crown must justify the exceptional course. A deficient summing up may also make a conviction unsafe where it fails fairly to present a positive defence or to assist the jury with substantial circumstantial and documentary evidence.

The appellant was convicted at Winchester Crown Court, following a second retrial, of conspiracy fraudulently to evade the prohibition on importing cocaine. He received 14 years’ imprisonment and a five-year Serious Crime Prevention Order.

Two earlier juries had been unable to reach verdicts after full trials. The prosecution alleged that the appellant financed a proposed cocaine importation through Portsmouth Docks. His case was that his dealings concerned cannabis, not cocaine, and that he lacked the means to finance the alleged conspiracy.

He appealed on the grounds that a third trial should have been stayed and that the summing up was defective.

1. Appeal allowed; conviction quashed. A second retrial after two jury disagreements is permissible only where the interests of justice justify it. That requires a fair trial in circumstances that are neither oppressive nor unjust. The court, not merely the prosecutor, must determine the issue through an informed, dispassionate and searching assessment.

2. The court accepted the approach in Bell [2010] 1 Cr App R 27, read with Ali [2011] 2 Cr App R 22 and Bowe [2001] UKPC 19. Extreme gravity and very powerful evidence will usually identify the exceptional cases in which a third trial may be justified. They are not an inflexible two-stage test, because wider interests of justice may require consideration in an unusual case. The Crown bears the burden of justifying the exceptional course.

3. The trial judge did not apply that approach with sufficient rigour. This uncompleted drug conspiracy was very serious but was not shown to be one of extreme gravity. No drugs had been imported, and the evidence against the appellant was circumstantial rather than very powerful. The Crown did not establish an exceptional justification for a third trial. The trial should therefore not have occurred, and the resulting conviction was unsafe.

4. Independently, the summing up was defective. It did not clearly present the appellant’s positive reliance on his cannabis conviction, omitted potentially favourable evidence that cocaine had not been mentioned in his presence, and gave insufficient structured assistance on extensive documentary and circumstantial evidence. Taken together, those defects would also have rendered the conviction unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2015] EWCA Crim 1307.

• Winchester Crown Court: Following a second retrial, convicted the appellant of conspiracy fraudulently to evade the prohibition on importing cocaine.