202501491 B4 - [2025] EWCA Crim 969

This is an appeal by leave of the trial judge against a decision he made in a preparatory hearing that it is lawful for the prosecution to be granted a retrial on an allegation of murder against ANL. The ruling was made after a trial where the jury convicted ANL of count 2, manslaughter, which had been added to the indictment as an alternative to murder, which was count 1. They were discharged from returning a verdict on count 1 following their inability to agree a verdict on it.

The appeal is brought under section 35 of the Criminal Procedure and Investigations Act 1996. We have received helpful written and oral submissions from counsel on both sides, for which we are grateful.

During the deliberations, the judge received a note from the jury. Although he was unable to reveal the content, he told the court that he had reason to believe that if the jury were unable to reach a verdict on count 1 in relation to the appellant, it was likely that they would be able to reach a verdict in relation to count 2 in his case. On the morning of 17^th January 2025 he received a further note indicating that they were unable to reach a verdict in relation to murder but had proceeded to consider count 2 and had reached a verdict on that count.

The matter was discussed in court and the judge subsequently discharged the jury from returning a verdict on count 1 in ANL’s case, and invited them to consider count 2. They did so and subsequently returned a unanimous verdict of guilty in relation to manslaughter on the afternoon of 17^th January 2025. As a result of the jury failing to agree in the first trial, a co-defendant also faces a retrial for manslaughter.

On a later date, the prosecution informed the court that they intended to seek retrials in the two cases where the jury had been unable to agree verdicts, and an objection to this was made on behalf of ANL on the ground that the court might be precluded from doing so in light of the procedure that had been undertaken in relation to the taking of the verdicts.

On 15^th March 2025, the judge ordered that a preparatory hearing should be held so that the issues could be fully argued and determined. The hearing took place on Friday 28^th March 2025 and the judge decided that it was lawful for a retrial against the appellant for murder to take place.

In his ruling, the judge set out the facts of the case and the history of the proceedings. He referred to R v McEvilly [2008] EWCA Crim 162 and R v Fernandez [1997] 1 Cr App R 123. He said that those cases decided that where there were two charges in the alternative on an indictment arising from the same facts, the judge should not take a verdict on the less serious count until finality (for example a not guilty verdict or a decision to discharge the jury) had been reached in relation to the more serious charge. The judge recorded that he had been invited to discharge the jury from returning a verdict on the murder count and to take the manslaughter verdict. Nothing had been said by counsel as to what, if any, consequence might follow in relation to the future possibility of retrying the murder count. Had the question been raised, the judge would have sought to resolve that issue before agreeing to discharge the jury from returning a verdict on count 1. The judge considered that the verdicts suggested that the jury were sure that he participated in the attack which resulted in the death of the deceased but fewer than 10 jurors were sure that he had an intention to kill or cause really serious injury. Contrary to their submissions at the time, counsel for the prosecution submitted that the taking of the manslaughter verdict for the appellant was an irregularity as this would never have been an acceptable disposal of the indictment in his case. Alternatively, it was submitted that the taking of the verdict did not preclude a retrial on the murder count. Counsel for the appellant submitted that there was no irregularity in the taking of the verdict and that it would be an abuse of the process of the court to permit a retrial.

The judge considered R v Saunders [1987] 85 Cr App R 334 (“Saunders”) and concluded that the circumstances of that case were very different from those with which he was dealing. The judge noted that he had not asked whether a retrial might be sought and had not been asked to form a view or express a view as to whether a conviction for manslaughter would suffice to provide a just determination of the case. He would have done so if asked and would not have exercised any judicial discretion so as to preclude the possibility of a retrial. The judge also considered R v Bayode [2013] EWCA Crim 356 (“Bayode”), R v Skeete [2002] EWCA Crim 1654, and R v Yusuff and Others v The Governor of HMP Belmarsh [2024] EWHC 692. He did not find that any of these decisions prevented the court from conducting a retrial of ANL on count 1.

The prosecution had invited the judge to set aside the verdict on count 2 in order to allow section 6(2) of the Criminal Law Act 1968 to have full effect and for the verdict on the alternative count to follow an acquittal of the more serious count rather than the jury being unable to agree. The judge declined to take this course. He held that the retrial of the appellant for murder could be conducted fairly and any potential unfairness would be addressed by the court exercising its discretion in relation to the admissibility of evidence. If a new jury convicted the appellant of murder, his manslaughter conviction would fall away or could be quashed by order of the court so as not to offend the rule against contradictory convictions.