In the aftermath of the Abu Bakr conspiracy trial, several
issues that arose after the failure of the jury to agree have
provided food for thought and for discussion and argument
across the country.
Whether or not it is on the talk shows, in a taxi, a bar,
or just about any gathering, similar questions have emerged:
Isn’t six a majority? Shouldn’t the judge have sent
the jury to deliberate again?
Can someone “get off” because of prejudicial publicity?
Is it usual to order a retrial?
Facts such as that the defendant is well known in this country,
having led the attempted coup in 1990; proudly has four wives;
and has been on friendly terms with various governments undoubtedly
conspired to generate national interest in the case.
Last Wednesday, the jury failed to agree on a verdict on Abu
Bakr’s charge of conspiracy to murder two former members
of his organisation.
Majority verdict
In any trial of a non-capital matter, nine jurors sit on the
case (this is as compared to offences such as murder that
carry the death penalty, in which there are 12 jurors).
The law provides that in these non-capital matters, the court
may accept a majority verdict, which they cannot do in capital
cases.
Of course, a majority verdict cannot be taken immediately.
The law requires the jury to first try to agree on a unanimous
verdict. So they must deliberate, and if after three hours
they fail to agree, then a majority verdict may be given.
In the Bakr matter, when the jury was sent for after the mandatory
three hours, the foreman indicated they could not agree on
a verdict: they were divided 6-3.
Of course, this begs the question, “isn’t this a
majority verdict?”
Not under our law. An acceptable verdict is one where the
minority is no more than two. Thus, a verdict of 8-1 or 7-2
may be accepted (the verdict will be that of the majority).
It is clear, then, that the judge could not accept a verdict
of six of the jurors.
Further deliberations
The Jury Act permits a judge to send a jury back to deliberate,
in an attempt to arrive at a verdict. In this case, the jury
had clearly indicated that if given more time, they still
would not agree.
Since they were divided 6-3, the question was should the judge
send the jury back in order to try to reach a majority verdict
of at least 7-2? The act states that if seven of the jury
are not agreed on a verdict after the mandatory three hours’
retirement, “the jury may be further directed to retire.”
The judge chose not to do so, and that is within his discretion,
since if he “may” direct them to retire, he also
may choose not to do so.
Retrial
It is customary where a jury fails to agree on a verdict to
try the defendant again, since there was no adjudication on
the case.
In fact, in some cases there have even been three trials (two
retrials).
The Court of Appeal has itself ordered many retrials in cases
where it was found that either a defendant did not receive
a fair trial, or that there was some error in law at the trial.
It is clear, then, that the ordering of a retrial is not an
unusual occurrence, and happens in criminal courts on a regular
basis.
The real question, though, is whether, as has been suggested,
the defendant Abu Bakr may not obtain a fair trial on the
retrial because of the massive publicity that surrounded the
first trial and, if so, should he be tried at all.
In other words, should the proceedings be stayed?
Prejudicial
The rule is that a trial may be stayed, if it can be shown
that as a result of prejudicial pre-trial publicity, an accused
person cannot have a fair trial.
Thus, it is not just the fact of publicity that will make
a trial unfair. It must be shown that potential jurors may
have been so prejudiced by material which has been published
that they cannot try the accused fairly.
I venture to say that the mere publication of the evidence
in the first trial, given on the part of both the defence
and the accused, is unlikely to generate such prejudice.
If a fair trial was still possible, despite the well-known
fact that the accused led the abortive July 1990 coup, in
the first place it seems to me that the fact that the evidence
given in the trial is now known is unlikely to make a difference.
If that were so, then any person who is retried could make
the same claim, since the evidence in his trial will also
have been published before the second trial.
Once there is a time lapse between the two trials—some
months, perhaps—the less likely is it that details of
the evidence will be fresh in anyone’s mind then so as
to amount to pre-determination of the case.
The overriding determination in proceeding with a second trial
must be the public interest. There is no reason that one accused
should be treated differently from another if a jury fails
to agree.
We should all be equal in the eyes of the law.
