Background
The States have approved the reintroduction of retrials when a jury cannot reach a majority verdict. This reverses a 2018 amendment that had removed the option of retrying cases that ended with a hung jury.
Under the new approach, a single retrial will be permitted if jurors fail to reach a verdict. The Home Affairs Minister, Deputy Mary Le Hegarat, argued that a hung jury is not a verdict and leaves victims, families and the wider public without closure. Supporters say the change brings Jersey back into line with other common‑law jurisdictions and ensures serious allegations are not left unresolved.
Critics, including Sir Philip Bailhache, warned that allowing retrials gives the prosecution “a second bite of the cherry” and risks undermining the principle of reasonable doubt. The debate gained momentum after the L’Ecume II trial, where the jury was unable to reach verdicts on key charges, exposing the gap created by the 2018 reform.
15 politicians voted against retrials, but 27 politicians supported the plans and three abstained.
In favour:
Supporters of the change argue that a hung jury is not a verdict. When jurors cannot reach agreement, the case ends without resolution, leaving victims, families and the wider public without answers. Allowing a single retrial ensures that serious allegations are not left in limbo simply because one jury could not reach a decision.
They also emphasise that Jersey should remain aligned with other common‑law jurisdictions, where retrials after hung juries are standard practice. In their view, Jersey’s previous position of banning retrials entirely was an outlier that weakened the justice system’s ability to deal with complex or sensitive cases.
Another argument is that a retrial can actually strengthen fairness. A second jury may see the evidence differently, and the process gives both sides an opportunity to present their case more clearly. Supporters say this is especially important in cases involving multiple charges or complicated facts, where a single jury may struggle to reach unanimity.
Finally, proponents argue that justice must be seen to be done. If a serious case collapses because a jury cannot agree, public confidence can be damaged. Allowing one retrial strikes a balance: it avoids endless prosecutions while ensuring that the most serious matters receive a full and fair hearing.
Against:
Opponents argue that a hung jury already demonstrates reasonable doubt. If twelve people cannot agree on guilt, they say the prosecution has failed to meet the required standard, and retrying the case effectively disregards that outcome. Many Members also warned that a retrial gives the prosecution a “second bite of the cherry”, allowing it to refine its case while the defendant must endure the entire process again.
There are also concerns about the burden placed on defendants. A second trial can mean enormous financial strain, prolonged stress and reputational damage, and in some cases may pressure innocent people into pleading guilty simply to avoid another ordeal. Critics also question whether a second trial can ever be truly fair in a small community. After extensive media coverage and public discussion, finding a fresh jury without preconceived views becomes increasingly difficult.
Some Members argued that repeated attempts to secure a conviction risk undermining public confidence in the justice system, suggesting the State is unwilling to accept the outcome of the first trial. Others highlighted the significant cost to taxpayers, especially in complex or high‑profile cases, and questioned whether public money should be used to repeat a process that has already failed to reach a verdict. Finally, critics noted that Jersey had previously removed retrials after hung juries to strengthen protections for defendants, and reversing that decision was seen by some as a step backwards.
Elsewhere:
In England and Wales, retrials after a hung jury are long‑established practice. If a jury cannot reach a verdict, the prosecution may seek a retrial provided there remains a realistic prospect of conviction and it is in the public interest. This approach is seen as a normal part of criminal procedure. Scotland also permits retrials after a hung jury, though its jury system and verdict options differ.
Guernsey does not use juries for criminal trials. Cases are decided by a judge and Jurats, so the concept of a hung jury does not arise. Because of this structure, Guernsey has no need for a retrial mechanism based on jury disagreement.
The Isle of Man requires unanimous jury verdicts, and hung juries are rare. When they do occur, a retrial can be ordered, but it is considered exceptional. The system allows for a second trial, but the threshold for proceeding is high and the situation arises infrequently.
In Australia, all states and territories allow retrials after a hung jury. Jury unanimity is preferred, but most jurisdictions accept majority verdicts in many cases. If a jury still cannot agree, a mistrial is declared and prosecutors may seek a retrial. This is treated as a routine safeguard to ensure serious charges are fully tested.
Canada also permits retrials after a hung jury. When a jury cannot reach a unanimous verdict, the judge declares a mistrial, and the Crown may order a new trial. This is standard practice across the country and is viewed as necessary to ensure that unresolved serious cases are not left without a conclusion.
External Juries?
Jersey has never used external jurors, but other small or close‑knit jurisdictions have done so when fairness demanded it. If Jersey ever faced a case so high‑profile that a second impartial jury could not be found, international examples show that importing jurors is a workable, though exceptional, safeguard.
Allowing external jurors in Jersey would require several deliberate legal changes, each addressing a different structural assumption in the current system. The Jury Law would need to be amended so that jurors are no longer required to be Jersey residents, creating a new category of “external” or “special” juror who can be summoned from outside the Island. This change would also need to define their eligibility, duties and protections while serving.
A further amendment would be needed to give the Bailiff or Royal Court explicit authority to order external jurors in exceptional circumstances, such as when local impartiality cannot be guaranteed. This power would need clear criteria to prevent overuse and ensure it is reserved for genuinely high‑profile or sensitive cases.
The law would also have to provide a legal basis for summoning, transporting and accommodating external jurors. That includes specifying who pays for travel and lodging, how jurors are supervised, and how they are sworn in. Additional provisions would be required to extend Jersey’s contempt‑of‑court rules, confidentiality obligations and juror protections to people who are not ordinarily resident in the Island.
Because juror information is sensitive, Jersey would need to adjust its data‑protection framework to allow limited sharing of personal data with the UK, Isle of Man or other jurisdictions supplying jurors, while maintaining GDPR‑level safeguards. Finally, the Royal Court Law may need clarification to ensure that the presence of non‑resident jurors does not conflict with the Court’s defined composition or procedures.
These changes would not be minor tweaks, they would amount to a carefully designed legal framework enabling external jurors only when absolutely necessary, while preserving the integrity of Jersey’s justice system.
The case of the Jurats - a way forward?
Jersey has already shown, through the recent reform allowing Guernsey Jurats to sit in the Royal Court, that it can adapt long‑standing constitutional rules when fairness or practicality requires it. That change demonstrated that the Island is willing to bring in external decision‑makers in exceptional circumstances, especially when the local pool is too small or conflicts of interest are more likely in a close‑knit community. The amendment effectively expanded who could serve as a Jurat and created a lawful mechanism for cross‑island judicial cooperation without undermining Jersey’s autonomy.
This precedent matters because it shows that Jersey is not rigidly bound to a purely insular model of justice. If the Island can adjust the composition of its Jurat bench, historically one of the most traditional parts of its legal system, then, in principle, it could also adjust the jury system if impartiality in a high‑profile case became impossible. The Jurat reform proves that external adjudicators can be integrated into Jersey’s courts while preserving the integrity and identity of the justice system.
In that sense, the Jurat example strengthens the argument that importing jurors, while more complex, is not conceptually out of reach. Jersey has already accepted the idea that fairness sometimes requires looking beyond its own borders, and it has already created a legal framework to make that work in practice.
Under the new approach, a single retrial will be permitted if jurors fail to reach a verdict. The Home Affairs Minister, Deputy Mary Le Hegarat, argued that a hung jury is not a verdict and leaves victims, families and the wider public without closure. Supporters say the change brings Jersey back into line with other common‑law jurisdictions and ensures serious allegations are not left unresolved.
Critics, including Sir Philip Bailhache, warned that allowing retrials gives the prosecution “a second bite of the cherry” and risks undermining the principle of reasonable doubt. The debate gained momentum after the L’Ecume II trial, where the jury was unable to reach verdicts on key charges, exposing the gap created by the 2018 reform.
15 politicians voted against retrials, but 27 politicians supported the plans and three abstained.
In favour:
Supporters of the change argue that a hung jury is not a verdict. When jurors cannot reach agreement, the case ends without resolution, leaving victims, families and the wider public without answers. Allowing a single retrial ensures that serious allegations are not left in limbo simply because one jury could not reach a decision.
They also emphasise that Jersey should remain aligned with other common‑law jurisdictions, where retrials after hung juries are standard practice. In their view, Jersey’s previous position of banning retrials entirely was an outlier that weakened the justice system’s ability to deal with complex or sensitive cases.
Another argument is that a retrial can actually strengthen fairness. A second jury may see the evidence differently, and the process gives both sides an opportunity to present their case more clearly. Supporters say this is especially important in cases involving multiple charges or complicated facts, where a single jury may struggle to reach unanimity.
Finally, proponents argue that justice must be seen to be done. If a serious case collapses because a jury cannot agree, public confidence can be damaged. Allowing one retrial strikes a balance: it avoids endless prosecutions while ensuring that the most serious matters receive a full and fair hearing.
Against:
Opponents argue that a hung jury already demonstrates reasonable doubt. If twelve people cannot agree on guilt, they say the prosecution has failed to meet the required standard, and retrying the case effectively disregards that outcome. Many Members also warned that a retrial gives the prosecution a “second bite of the cherry”, allowing it to refine its case while the defendant must endure the entire process again.
There are also concerns about the burden placed on defendants. A second trial can mean enormous financial strain, prolonged stress and reputational damage, and in some cases may pressure innocent people into pleading guilty simply to avoid another ordeal. Critics also question whether a second trial can ever be truly fair in a small community. After extensive media coverage and public discussion, finding a fresh jury without preconceived views becomes increasingly difficult.
Some Members argued that repeated attempts to secure a conviction risk undermining public confidence in the justice system, suggesting the State is unwilling to accept the outcome of the first trial. Others highlighted the significant cost to taxpayers, especially in complex or high‑profile cases, and questioned whether public money should be used to repeat a process that has already failed to reach a verdict. Finally, critics noted that Jersey had previously removed retrials after hung juries to strengthen protections for defendants, and reversing that decision was seen by some as a step backwards.
Elsewhere:
In England and Wales, retrials after a hung jury are long‑established practice. If a jury cannot reach a verdict, the prosecution may seek a retrial provided there remains a realistic prospect of conviction and it is in the public interest. This approach is seen as a normal part of criminal procedure. Scotland also permits retrials after a hung jury, though its jury system and verdict options differ.
Guernsey does not use juries for criminal trials. Cases are decided by a judge and Jurats, so the concept of a hung jury does not arise. Because of this structure, Guernsey has no need for a retrial mechanism based on jury disagreement.
The Isle of Man requires unanimous jury verdicts, and hung juries are rare. When they do occur, a retrial can be ordered, but it is considered exceptional. The system allows for a second trial, but the threshold for proceeding is high and the situation arises infrequently.
In Australia, all states and territories allow retrials after a hung jury. Jury unanimity is preferred, but most jurisdictions accept majority verdicts in many cases. If a jury still cannot agree, a mistrial is declared and prosecutors may seek a retrial. This is treated as a routine safeguard to ensure serious charges are fully tested.
Canada also permits retrials after a hung jury. When a jury cannot reach a unanimous verdict, the judge declares a mistrial, and the Crown may order a new trial. This is standard practice across the country and is viewed as necessary to ensure that unresolved serious cases are not left without a conclusion.
External Juries?
Jersey has never used external jurors, but other small or close‑knit jurisdictions have done so when fairness demanded it. If Jersey ever faced a case so high‑profile that a second impartial jury could not be found, international examples show that importing jurors is a workable, though exceptional, safeguard.
Allowing external jurors in Jersey would require several deliberate legal changes, each addressing a different structural assumption in the current system. The Jury Law would need to be amended so that jurors are no longer required to be Jersey residents, creating a new category of “external” or “special” juror who can be summoned from outside the Island. This change would also need to define their eligibility, duties and protections while serving.
A further amendment would be needed to give the Bailiff or Royal Court explicit authority to order external jurors in exceptional circumstances, such as when local impartiality cannot be guaranteed. This power would need clear criteria to prevent overuse and ensure it is reserved for genuinely high‑profile or sensitive cases.
The law would also have to provide a legal basis for summoning, transporting and accommodating external jurors. That includes specifying who pays for travel and lodging, how jurors are supervised, and how they are sworn in. Additional provisions would be required to extend Jersey’s contempt‑of‑court rules, confidentiality obligations and juror protections to people who are not ordinarily resident in the Island.
Because juror information is sensitive, Jersey would need to adjust its data‑protection framework to allow limited sharing of personal data with the UK, Isle of Man or other jurisdictions supplying jurors, while maintaining GDPR‑level safeguards. Finally, the Royal Court Law may need clarification to ensure that the presence of non‑resident jurors does not conflict with the Court’s defined composition or procedures.
These changes would not be minor tweaks, they would amount to a carefully designed legal framework enabling external jurors only when absolutely necessary, while preserving the integrity of Jersey’s justice system.
The case of the Jurats - a way forward?
Jersey has already shown, through the recent reform allowing Guernsey Jurats to sit in the Royal Court, that it can adapt long‑standing constitutional rules when fairness or practicality requires it. That change demonstrated that the Island is willing to bring in external decision‑makers in exceptional circumstances, especially when the local pool is too small or conflicts of interest are more likely in a close‑knit community. The amendment effectively expanded who could serve as a Jurat and created a lawful mechanism for cross‑island judicial cooperation without undermining Jersey’s autonomy.
This precedent matters because it shows that Jersey is not rigidly bound to a purely insular model of justice. If the Island can adjust the composition of its Jurat bench, historically one of the most traditional parts of its legal system, then, in principle, it could also adjust the jury system if impartiality in a high‑profile case became impossible. The Jurat reform proves that external adjudicators can be integrated into Jersey’s courts while preserving the integrity and identity of the justice system.
In that sense, the Jurat example strengthens the argument that importing jurors, while more complex, is not conceptually out of reach. Jersey has already accepted the idea that fairness sometimes requires looking beyond its own borders, and it has already created a legal framework to make that work in practice.
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