What a Hung Jury Means for Each Charge
Twelve Jurors Can Finish A Trial With Three Different Answers In The Court Record.
Imagine a Crown Court jury returning after a trial with three charges. On the first, the defendant is found guilty. On the second, the defendant is acquitted. On the third, the foreperson says the jury has been unable to reach a verdict. A headline saying the jury was hung would tell only a third of the story. Two decisions have been made, with very different consequences. The outstanding charge now raises a new question for the prosecution.
In England and Wales, jurors begin by trying to reach a unanimous verdict. In appropriate circumstances the judge may later accept a specified majority. If the jury still cannot reach a permitted verdict, the judge can discharge it from deciding the outstanding count. The prosecution must then consider whether to seek a fresh trial. Disagreement alone produces neither a conviction nor an acquittal. It also tells the public remarkably little about what the jurors thought of the case.
What The Jury Takes Into The Deliberation Room
A trial can occupy weeks of courtroom time, yet the legal questions that follow the jury through the door may fit on a few sheets of paper. The judge explains the law. The jury decides what facts the evidence establishes and whether the prosecution has made it sure of guilt. In a case involving several charges or defendants, written directions or a route to verdict can help jurors keep track of which questions belong to whom.
The word count has a particular meaning here. A count is an individual allegation on the indictment. Similar allegations can involve different dates, complainants, witnesses and issues. A jury might accept evidence proving an identification on one occasion and remain unsure about identification on another. The fact that all the charges appeared in the same courtroom does not permit the jury to return one impression of the defendant's character in place of decisions on the separate allegations.
Deliberation gives jurors a chance to test their recollections against each other and the evidence they are permitted to consider. An apparent disagreement may turn out to concern the definition of an offence, the sequence of two exhibits or a passage of evidence nobody remembers with confidence. A question can be sent to the judge. The parties can address how it should be answered and the jury can receive a direction in court.
That process matters because a request for help can easily be misread from the public benches. Jurors who ask to hear a passage again may resolve a disagreement entirely. Jurors who ask no questions may still differ profoundly. The length of time they spend out, the exhibits they request and the hour at which they send a note are poor substitutes for the one public event that establishes their decision, the taking of a verdict.
When Can A Judge Accept A Majority?
The initial instruction is to try to agree unanimously. Section 17 of the Juries Act 1974 permits specified majority verdicts in the Crown Court. There must have been at least two hours of deliberation and the court must consider the time reasonable in light of the nature and complexity of the case. The legal minimum supplies a floor. A long trial with a complicated indictment can plainly require much longer before a change of direction is appropriate.
Court reports sometimes mention two hours and ten minutes. The familiar extra ten minutes allow in practice for movement between the courtroom and the retiring room. It is deliberation time that counts. Lunch, an overnight adjournment or a lengthy legal discussion while the jury is elsewhere cannot simply be treated as an uninterrupted opportunity for jurors to consider the evidence.
The judge decides whether and when to give a majority direction. Jurors do not gain the right to settle matters by majority because somebody has checked a watch. Nor does the direction instruct them to abandon the effort to agree. It tells them what the court can accept if unanimity proves impossible. A jury can receive that direction and later return a unanimous verdict after further discussion.
Why allow time beyond the statutory minimum? Consider two trials that both conclude the evidence on a Monday morning. In one the jury must decide a single contested fact arising from a brief encounter. In the other there are several defendants and a series of transactions supported by competing expert accounts. Each jury has spent two hours deliberating by early afternoon. Only the clock says they have reached the same point in their work.
What Ten To Two Actually Means
With all twelve jurors sitting, the permitted majorities are eleven to one and ten to two. A nine-to-three split is insufficient, even though three times as many people take one view as the other. If eleven jurors remain, at least ten must agree. With ten jurors, nine must agree. If the trial continues with only nine, unanimity is required. A casual reference to a two-thirds majority would therefore give the wrong answer in every configuration.
These thresholds can matter when a juror has had to be discharged during the trial and the judge has allowed the remaining jury to continue. Ten votes carry different implications depending on whether there are twelve, eleven or ten people still serving. Read a report of a ten-to-one verdict carefully and you learn two things. It was a majority verdict and eleven people were sitting when it was returned.
The direction applies to acquittal as well as conviction. It changes how many jurors must agree on a verdict the court can take. It leaves the standard of proof where it was. When ten of twelve jurors convict after a proper direction, each of those ten must be sure of guilt. The prosecution is never permitted to prove ten twelfths of the elements of an offence, and a juror who is unsure has no duty to change a vote to make the arithmetic work.
For a majority verdict of guilty, the numbers agreeing and dissenting must be stated in open court. The court checks that the verdict meets the statutory threshold. An announcement of ten to two tells us the number of jurors prepared to convict. It gives no warrant for attributing a motive to either dissenter or imagining a dispute about one particular witness. The official count measures agreement on the answer, not the route each person took to it.
What Happens If The Jury Says It Is Stuck?
A note reporting difficulty can invite several responses. A legal point may need clarification. A judge might consider it appropriate for the jury to deliberate further. If the conditions are met, a majority direction may assist. Ultimately the judge must assess whether further retirement serves a legitimate purpose. Jurors must have space to listen to one another while remaining free to adhere to an honestly held view.
The distinction between encouragement and pressure has real consequences. A request to examine the issues carefully asks jurors to perform their task. Suggesting that they owe the court a verdict by a particular hour risks making the inconvenience of disagreement a reason to surrender a judgement about guilt. A person awaiting trial has an interest in independent decisions. So does a witness who has entrusted evidence to that process.
When the judge discharges the jury because it cannot agree, the decision concerns the ability of this jury to finish its work. There is no public ranking of which side came closer. The court can record that the jurors were unable to agree without declaring how they divided. People often assume the missing figure would tell them whether another prosecution was likely. Even if they had a number, it would describe only one group's judgement on the evidence as that group heard it.
Take the three-count example. The jury may return the decisions it can reach, with the judge directing how the remaining count is dealt with. Once the acquittal and conviction have been taken, the outstanding issue must be identified accurately. The defendant has been cleared of one allegation and convicted of another. Saying the entire trial collapsed would erase a verdict in each direction and obscure what remains open for consideration.
Can The Jury Agree On Guilt For Different Reasons?
Jurors can assess the same witness differently and still reach the same verdict. One may find a contemporary document especially persuasive while another gives greater weight to an identification tested in court. A verdict does not require twelve identical personal narratives. It requires the necessary agreement on the verdict in accordance with the judge's directions. Where distinct possible acts or legal routes create a particular issue about agreement, the judge must deal with that issue in the directions for the case.
For a member of the public, the practical discipline is to listen for the actual question the jury was asked. Agreement on one count cannot safely be translated into a finding on every contested detail mentioned during the trial. Nor does an inability to agree on another count undermine every fact both sides accepted. A verdict answers the allegation as charged under the legal directions given. A failure to reach one supplies even less information about individual pieces of evidence.
Who Decides Whether There Will Be A Retrial?
The Crown Prosecution Service applies the two-stage test in the Code for Crown Prosecutors again. First it asks whether the admissible evidence gives a realistic prospect of conviction. If the evidential stage is met, it considers whether prosecution is required in the public interest. A serious allegation can plainly weigh heavily in that second assessment. Seriousness alone cannot repair a failure at the evidential stage.
The first trial may have changed a prosecutor's assessment. A witness could have explained an apparent inconsistency convincingly under cross-examination. Equally, a piece of evidence that looked clear on paper might have proved significantly less reliable when tested. Counsel who conducted the case can give an assessment of how it emerged at trial. The decision takes account of what can actually be put before another jury.
A complainant's views are important, particularly when the public interest is considered. Giving evidence again may carry a considerable personal cost. Other witnesses, the police and the judge may also supply information relevant to the decision. The responsibility rests with the prosecutor. A person who has already given evidence should never be made to carry the implication that the choice between continuing and stopping rests on their shoulders alone.
A mixture of acquittals and unresolved counts can change the practical shape of a second trial. The prosecutor must consider how to present the outstanding allegation fairly after other matters have been decided. Evidence may have been relevant to several counts in different ways. Decisions about its admissibility and the directions a new jury requires belong in court. A reporter cannot simply strike a few paragraphs out of the first trial's opening speech and assume that is the case the next jury will hear.
If the prosecution test is no longer met, the CPS guidance provides for no evidence to be offered. That is a further procedural step, distinct from the first jury's discharge. If the decision cannot be made immediately, the court can deal with an adjournment and future dates. Bail or custody is a separate judicial question. Disagreement in the retiring room gives no automatic answer about where the defendant will wait.
What The New Jury Decides
A retrial places the unresolved allegation before a fresh jury. The new jurors hear the admissible evidence and receive the directions relevant to their trial. They are never asked to review whether their predecessors took a sensible position. There is no previous verdict on the unresolved count for them to affirm, overturn or split the difference with.
That is the simplest answer to a common double-jeopardy question. A deadlock has left the charge undecided. Reconsidering whether to prosecute it is procedurally different from seeking to set aside a valid acquittal. The law has separate, exceptional provisions concerning certain acquittals. They are not the ordinary route following a hung jury. In the three-count example it is the outstanding count that prompts the retrial assessment.
The practical burden of starting again explains why the decision is consequential for everyone. Witnesses may have to arrange their lives around another hearing. The defence must prepare to answer the allegation again. Court time must be found and jurors summoned. Those costs help explain both the care taken to let the first jury deliberate and the care required before asking a second jury to undertake the same responsibility.
What If A Second Jury Also Cannot Agree?
After two juries have deliberated and been discharged for disagreement, the position changes markedly. There is a strong presumption against a third trial. The authorities discussed in CPS guidance confine it to very exceptional circumstances. The guidance highlights a crime of extreme gravity and very powerful evidence that the defendant committed it. A Chief Crown Prosecutor must approve a decision to seek a third trial.
The distinction between two disagreements and two disrupted hearings matters. A jury discharged before it has considered a verdict, perhaps because a trial can no longer continue fairly, has not tested its ability to agree after deliberation. A headline counting the number of times a case has started can therefore give the wrong impression about which restriction applies. What happened to the previous juries is as important as how many there were.
One final comparison makes the position clear. After a majority conviction, the court can identify a lawful verdict and, when required, the number supporting it. After an acquittal, the defendant leaves that count with a decision in their favour. After disagreement the public record contains a gap that neither side is entitled to fill with its preferred story. The next reliable answer comes from a decision by the prosecution, a ruling by the court or a verdict from a fresh jury.
Sources
UK Parliament — Juries Act 1974, section 17 — Permitted majorities, deliberation time and the announcement of majority convictions.
Judicial College — Crown Court Compendium, Part I — Judicial directions on deliberation, disagreement and the timing of a majority direction.
Crown Prosecution Service — Re-trials — The prosecution decision after disagreement and the exceptional requirements for a third trial.
Next Reads
Russell Brand Trial Explained: The Evidence and All Seven Verdicts — How several individual counts appeared in one trial report.
What Did Russell Brand Say in His Police Interviews? — How evidence given earlier in a case can be examined in court.
How Long Could Russell Brand Spend in Prison? — The separate question of sentencing following a conviction.
