IMPORTANT POINT
The Court of Appeal has no power to review the exercise of discretion of a judge at a criminal trial to discharge the jury and order a retrial even under the amended Section 2(1)(a) of the Criminal Appeal Act.

JUDGMENT

Robert Goff L. J. - There is before the court an application for judicial review of a decision by the Home Office, dated September 23, 1982, not to refer the applicant's case to the Court of Appeal (Criminal Division) under sections 2 and 17 of the Criminal Appeal Act 1968.

2. As appears from the evidence before the court, the facts of the matter are as follows. On December 5, 1974, the applicant was tried at Inner London Crown Court, before Deputy Circuit Judge Tobin and a jury, on a charge of theft. Towards the close of the evidence called for the defence, the judge, having formed the opinion that the jury were favourably disposed towards the defence, proposed to give the jury the opportunity of acquitting the applicant, dispensing with the need for final speeches or a summing up. After an exchange with defence counsel and the completion of the defence evidence, that is what the judge did. The jury then retired. After about 10 minutes, when they had not returned, the judge called the jury back into court and, after giving them a further explanation, inquired of the foreman whether the jury wished the case to proceed. The foreman replied: "No, sir." But, on being asked whether the jury had reached a verdict upon which they were all agreed, the foreman replied; "No, it was 11 to 1."

3. Paced with that situation, the judge, having indicated that he was minded to allow the trial to proceed, adjourned the hearing till the next day. Oil the following morning, however, having considered the matter, the judge expressed the opinion that it would be wrong for the trial to continue with the same jury and that he ought to discharge the jury and order a retrial. Counsel for the defence submitted, at some length, that the judge should not take that course, but should allow the trial to continue before the same jury. The judge, having heard these submissions, decided nevertheless to discharge the jury and order a retrial. He said:

"In my view, the jury is now in such a state of confusion that they could not possibly correctly address their minds to the questions which they should discuss if they were to proceed with the hearing of this case. I am sorry if I have been the cause of it. It was with the intention of trying to do justice to all parties that I took the course I did...I do not think the jury could properly consider the things they would have to consider in all the circumstances. They must be in a state of confusion. 11 to 1 want to stop it without hearing any more from counsel. They have heard all the evidence and do not want to hear summing up from me. Then they see the case is going on. They then hear, presumably, (prosecution counsel) and if (defence counsel) wanted to resile from the course you indicated yesterday you would be at liberty to do so. They just would not know, what is going on, and I cannot conceive in those circumstances justice can be seen to be done. In those circumstances I think it right I should discharge this jury and order a retrial."

4. On January 28, 1975, a retrial took place before another jury. At the conclusion of that trial, the applicant was convicted. He then appealed to the Court of Appeal against his conviction. The appeal was heard on July 24, 1975, and was dismissed. The judgment of the court was delivered by Roskill L.J. He described the circumstances in which the order was made for the discharge of the first jury and for a retrial as:

"circumstances of unusual and, one hopes, unparalleled confusion for which, reluctant as we are to criticize  the sole responsibility must rest upon the deputy judge."

5. Having stated that it' was clearly not possible for the applicant to appeal against that order, Roskill L.J. went on to state that, having regard to section 2 of the Criminal Appeal Act 1968, the only possible ground of appeal was not against that order but against the conviction at the second trial, on the ground that that conviction was unsafe or unsatisfactory because of the earli