Tag Archives: advocate

What is a hung jury? What happens next?

Recently, the high profile prosecution of ex-police officer David Duckenfield relating to the Hillsborough tragedy ended without reaching a conclusion. A number of papers reported that there was a hung jury.  So, what does that mean?

In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.

hung juryWhere a case retains the original 12 jurors at least 10 must agree on the verdict.  If the numbers fall short, for example, with 8 wanting to acquit and 4 wanting to convict, that will not be an acceptable verdict.

If the jury indicates that they will not be able to reach a verdict in accordance with the law then then that jury will need to be discharged.

In legal terms, this is often referred to as a hung jury.

What happens if there is a hung jury?

hung juryThe prosecution can apply to have the defendant tried again.  This will be the outcome in most cases.

The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.

Typically, the court considers questions which include (but are not limited to) whether:

  • the alleged offence is sufficiently serious to justify a retrial
  • if re-convicted, the appellant would be likely to serve a significant period or further period in custody
  • the appellant’s age and health
  • the wishes of the victim of the alleged offence.

If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.

In most cases, the defence will not be able to properly resist the application.  We would, however, always carefully consider all relevant factors and object if able to.

What happens if a second jury still cannot reach a verdict?

The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.

Contact an expert in Crown Court representation

We are specialists in Crown Court litigation and advocacy.  You can read about how we prepare for such serious cases here.

Legal aid is likely to be available for defending a Crown Court case.

Here are some of the cases that we have dealt with recently:

Successful defence of a serious robbery in the home.

Successful challenge of expert evidence in drugs case.

Abuse of process in paedophile hunter case.

We have offices across the East Midlands.  From those we provide nationwide advice and representation.

You can find your nearest office here.

hung jury
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:


Robbery in a dwelling trial at Lincoln Crown Court

robbery in a dwelling
Nottingham solicitor advocate Lauren Fisher

Nottingham solicitor advocate Lauren Fisher recently represented a client before Lincoln Crown Court.  He was jointly charged with another with a single allegation of robbery in a dwelling.  Two other defendants were involved in the trial. One defendant had already pleaded guilty to his involvement in two robberies, and our client was jointly charged with one of those robberies.

This was in effect a re-trial, an earlier trial having been abandoned due to the prolonged bad weather.

Robbery in a dwelling house

robbery in a dwelling
Lincoln Crown Court

The charge that affected Lauren’s client was one of robbery in a dwelling.  The prosecution case was that he, along with the co-accused, had attended the house of the victim.  A taser had been produced.  Demands were then made that a large sum of money be transferred using internet banking.  In the event only half the amount was transferred, but the victim was forced to contact the bank by telephone to authorise the transfer.

Afterwards, it was said that our client and the co-accused left the property together.

Lauren’s client accepted that he had been present at the incident.  He had given his friend, the co-accused, a lift to the address and gone in because his friend did not know how long he would be.  At not time had he seen a taser, or hear the noise of one being discharge.  He did not know that money was to be stolen.

Once in the property the co-accused locked the door.  Once he was locked in, our client was unable to leave.  He took no part in the robbery and was as frightened as the victim of the offence.

The issues for trial

The important issues in the case were:

  • did our client know about the other robbery on the indictment that also involved this victim?
  • had he seen the taser at the point of entry?
  • could the prosecution establish that our client had knowledge of what was to happen before we entered the address?
  • had he participated in the offence at all?

The case involved careful cross examination of a witness who had been subject to two frightening robberies, in particular the second incident that we were charged with.  It was not disputed that either robbery had taken place, just whether our client was involved in any way.

As it was a re-trial, part of the preparation involved listening to the earlier evidence recorded on the court DARTS system.  This would allow cross examination on any inconsistencies between the statements and that evidence, and any evidence given at this trial.

Careful cross examination by solicitor advocate

Through cross examination Lauren was able to confirm that it would not have been inevitable that her client would have seen the taser.  The victim was not sure at which point they had seen the taser.  He also changed his account as to whether our client had left the house or not.  He perhaps struggled, in the end, to point to anything that our client had done or challenge the suggestion that we were scared of what was going on.  There were inconsistencies in his evidence that could not be explained.

A persuasive closing speech

robbery in a dwellingLauren had to approach her closing speech carefully.  She did not suggest that the victim was lying. Instead, she highlighted that it was likely that the witness believed what he was saying, but was mistaken.  Although he had been a victim of a crime, the nature of the incident meant that he was easily confused about the detail.

The jury was directed towards the burden and standard of proof and how that related to all the evidence that had been heard.  Having heard all of the evidence and the speeches in the case, Lauren’s client was found not guilty.

This was fortunate for her client, as the starting point after trial for an offence of robbery in a dwelling house in circumstances such as these was thirteen years in prison.

Instruct VHS Fletchers in your Crown Court case

We use a combination of in-house solicitor advocates and barristers, as well as specialists from the independent bar, to ensure that you have the representation that you need for your Crown Court case.

We aim to provide continuity of representation with a litigator and advocate assigned to your case at an early stage.

You can read more here about why you might want to consider instructing us as your solicitor.

Follow this link to see how we prepare serious cases of sexual assault for trial at the Crown Court.

You can read some examples of cases successfully defended at trial by our solicitor advocates both here and here.

You can contact us through your nearest office.  Details can be found here.

Alternatively you can use the contact form below.


Court Appointment and Litigators’ Fee Consultation Response

Litigator’s Graduated Fees Scheme and Court Appointees Consultation Papers

litigators' fee consultationThe litigators’ fee consultation ends on 24 March 2017. The government promised a full review of the way the litigator fee is paid. Instead it simply proposes a cut to that and the fees available for court appointed cross examination.

Respond to the Litigators’ Fee Consultation

Our response is here below, but if you wish to add your own then please follow this link,

Question 1

Do you agree with the proposed reduction of the threshold of PPE to 6.000?  Please give reasons.

It is premature to take such a step without the promised review of how criminal litigators are paid.  At this stage, without further review, this is simply a dramatic fee cut, albeit in a small number of cases.  A simple fee cut cannot be properly described as an ‘update’ to ‘the way we pay criminal litigators’.

Bearing in mind the fragile nature of the supplier base, this step should not be looked at in isolation.  The profession currently awaits an announcement for what the rates of pay will be under the new 1 April criminal legal aid contracts.  The following still appear to be undecided:

  • Will there be a reinstatement of the suspended 8.75% cut?
  • Will firms who have invested in in-house advocacy suffer the dramatic cuts predicted under the AGFS reform proposals?
  • What will be the effect of the promised LGFS review in terms of fee levels?

The Ministry of Justice is already in possession of research that demonstrates the likely effect of further fee cuts that will render the provision of legal aid advice and representation economically unsustainable.

At this stage, it is hard to see how these proposals ‘reduce bureaucracy’ or remove ‘unnecessary burdens’ on litigators.  It simply removes money for cases that need preparation by ‘expert litigators’ as acknowledged by the Ministry, and therefore the means to pay these experts a level of pay commensurate with their expertise.  Indeed, the proposal to require claims for ‘special preparation’ in a higher proportion of cases imposes bureaucracy and burdens on both the litigator, firms and the Legal Aid Agency or Criminal Cases Unit.

Litigator’s fees are properly based on the amount of pages of evidence served by the prosecution.  The amount of PPE is a useful proxy for how long a case will take to read.  It cannot be the Ministry’s position that the PPE should not be read – in the discharge of expert professional advice and representation it must be.

In serving the PPE, the Crown Prosecution Service must be sure that it is relevant and admissible.  If not, it would fall within Unused Material.  There is, of course, no payment due to litigators for considering such material.  In the larger cases there will be more of this material, and again the PPE proxy factors in that consideration and is a fair indication of how much additional material will have to be considered.

It would appear that the position of the Ministry is that more material is now being served than was being served when the scheme was designed.  If the material is not relevant, it should not be served, and would not be remunerated.  That is an issue for the Crown to address with the Prosecution.  It is likely to be seen as something of a blessing if the CPS could show restraint in what was served, rather than adopt the current position where many pages are served in electronic form at the last minute, with no hint of relevancy until the pages are considered by the litigator.

More restraint from the Crown would result in reduced LGFS payments and the more streamlined justice system that the Ministry wishes.  In the meantime, litigators should not be financially penalised.  The current system is closer to the aim of reflecting fair payment for work reasonably done (ie. reading the case and advising accordingly) that the proposed limit of 6000 pages.

A litigator will always ‘need’ to read the papers served.  Napper has not contributed to the Crown decision to serve more papers.  Over the years the various Statutory Instruments began to include electronically served evidence in the definition of PPE to reflect changing technology.  The effect of that was always going to be an increase in LGFS payments.

Napper simply reflected the current technological developments that permit the creation of pages of evidence that have never been on paper – presumably just the sort of development that the Ministry would embrace.  It is disingenuous to suggest that pre-Napper there was a limit of pages claimed – these proposals do not return the situation to pre-Napper costs.  As a result, the Ministry should consider whether the objection is to electronic statements or amount of PPE served by the Crown.  Once considered, the Ministry can simply confirm this is a fee cut that fails to recognise the current realities of service of PPE.

All evidence is now served electronically on the Crown Court Digital Case System.

The Ministry is in error in suggesting that, for example, phone evidence is quicker and easier to read than other evidence.  The ‘search function’ may identify any particular number, but it will not permit a detailed analysis of patterns in calls, combinations of calls or call duration that might be relevant in a complex conspiracy.  It will not interpret text messages that contain slang or abbreviations.  It will not permit the preparation of an argument that will undermine a prosecution assertion.  Once more, this would appear to be a consultation put forward that has no interest in exploring the realities of preparing a complex criminal case.

We note that, at least in part, the decision to cut fees is based on ’anecdotal evidence’ from case workers.  We would suggest that this is not a proper base for drastic fee cuts.  It is not possible to draw any conclusion as to a fall in Special Preparation claims – it may be likely that firms are simply defeated by the unnecessary burden of bureaucracy that this imposes so do not bother.  The Ministry will know, anecdotally, that firms often undertake work for clients where in the event no claim for payment is possible due to delays in processing legal aid, so such an approach would not be a surprise.

The consultation supplies figures in page 6 relating to the increase in the number of such ‘large’ cases.  Again, the consultation fails to acknowledge that the decision to serve PPE is a matter for the prosecution, not the litigator.  The plan will not provide any incentive on the prosecution to properly review papers served.  Instead, it provides a perverse incentive to overload the defence with a large volume of material of borderline relevance, knowing that the litigator will struggle to have a properly staffed office to read it.  The prosecution choose whether to make these cases ‘PPE heavy’.

Fixed fees have always been ‘sold’ to the profession on the basis that there will be ‘swings and roundabouts’.  This is understood to mean that while there will be cases that will not be economically viable to undertake, this will be made up for by other cases that carry the ‘profit’ that permits a firm to continue to be viable.  Unfortunately, this would appear be another example of the Ministry seeking to remove the profitable cases and leaving the profession with those that are not economically viable.  This should be looked at in the context of the evidence the Ministry holds and the threat to financial viability set out at the start of this response.

Question 2

If not, do you propose a different threshold or other method of addressing the issue?  Please give reasons.


Leave it as it is until you undertake the full review which should be carried out as soon as possible.

Question 3

Do you agree with the proposed capping of court appointees’ costs at legal aid rates?  Please give reasons.


It seems likely that the bulk of defendant’s where there is a court appointed solicitor involved will have had legal aid refused.  Experience tells us that will be a small minority who choose not to seek representation, this will not be a significant number.

As a result, while firms would represent clients for legal aid fees were legal aid available, the bulk of these client would only be represented at private rates.  The reason why they are not represented is because they cannot afford private fees.

As a result the suggestion is objectionable for this reason – why should firms accept what is a private instruction by the court at legal aid rates, and not private rates?  The rates are higher because they reflect private fee levels which are many times higher than legal aid rates.  The Ministry will no doubt note that from the fees charged by firms it chooses to instruct.

This proposal (again) ignores the sensitive nature of the cases; the care needed in cross examination; that responsibility being discharged where a litigant in person will have actually prepared the case (or not); and the need of the courts to ensure that there is representation to permit these trials to proceed.

The proposal is likely to have the result that fewer advocates undertake the work, irrespective of the contractual clause – there will always be a good reason not to undertake such work at a loss – and there will be a knock on effect for the courts and vulnerable witnesses.

Once more, the suggested reform fails to take into account what is required of the advocate involved. For example, in a rural area the advocate might be some distance from the court centre.  He might have reserved a full day to cross examine three witnesses following a court appointment.  On arriving at court, the defendant (not his client) chooses to plead guilty when the witnesses attend.  This is out of the advocate’s control.  He will be paid 1 ½ hours travel at c.£25 per hour, some waiting, and for a brief attendance.  The advocate is unable to undertake further work for the rest of the day, and that day will be undertaken at a financial loss.  The current fees will make that loss less likely, and more enthusiasm will be found in experienced advocates who can undertake the work.

An alternative would be to bring the scheme within the ‘swings and roundabouts’ of the legal aid system proper by either:

  • Removing the means test for cases identified as needing a ‘court appointment’ so that full representation can be provided. This doesn’t deal with defendants who choose not to have representation so may not be attractive.
  • Alternatively, or in addition, pay tiered fees identical to those paid for trials under legal aid fees ie. category 2 fees, the level dependent upon work undertaken and submitted on CRM6.

In such cases they will be remunerated as if the client had received legal aid, is likely to enhance client choice and may be unarguable in terms of mechanism for payment.

Question 4

Do you have any comments on the Equalities Statement published alongside this consultation and/or any further data about protected characteristics we should consider?

Having considered the Impact Assessments we make the following points:

  • We do not accept that the disparity in rates for court appointments and legal aid rates is ‘unfair’. It reflects private fee levels for a private appointment.
  • As a result, this is not an historic anomaly but reflects the fact that court appointments are not ‘legal aid’ for a client, but a private instruction to protect a witness.
  • The assessment fails to note that the witnesses themselves are likely to be affected stakeholders where trials cannot proceed due to a lack of advocate.
  • The principal uncertainty, not properly identified, must be whether anyone will provide cross-examination at the proposed rates.
  • The equalities assessment fails to acknowledge the witnesses as being a potentially affected class of person. It might be a generalisation, but it would seem correct to say that the likelihood is that the witness requiring protection will be female in many domestic violence cases.  As a result, anything likely to impact on witnesses in terms of whether a trial is effective and the expertise of those cross-examining at much reduced fees will impact more on women.  Of course, the Ministry will hold these figures so it is surprising that they weren’t mention.
  • By definition, those who need representation as they are not fit to plead are likely to have the most severe mental health difficulties. I am not sure that their interests have been adequately considered.
  • It is perhaps unbelievable that the effect on witnesses of these proposals is not mentioned, bearing in mind in relation to court appointments the whole reason is to protect them.
  • All of the assessments are predicated on the believe that advocates will continue to accept instructions as before. They won’t.  Factor that in look again at the impacts to the courts, defendants and witnesses.

Any risks from either proposal can be mitigated by leaving things as they are.