Note 632 — Chapter III

Hale, P.C. ii. 294. “By the ancient law, if the jury sworn had been once particularly charged with a prisoner, it was commonly held they must give up their verdict, and they could not be discharged before their verdict was given up.... But yet the contrary course hath for a long time obtained at Newgate, and nothing is more ordinary than after the jury is sworn and charged with a prisoner and evidence given, yet if it appears to the court that some of the evidence is kept back, or taken off, or that there may be a fuller discovery and the offence notorious, as murder or burglary, and that the evidence, though not sufficient to convict the prisoner, yet gives the court a great and strong suspicion of his guilt, the court may discharge the jury of the prisoner, and remit him to the gaol for further evidence; and accordingly it has been practised in most circuits of England, for otherwise many notorious murders and burglaries may pass unpunished, by the acquittal of a person probably guilty, where the full evidence is not searched out or given.” “The whole law upon this subject,” says Sir James Fitzjames Stephen, “was elaborately considered a few years ago in R. v. Winsor (L.R. 1 Q.B. 289), when it appeared, from many authorities, that the practice had fluctuated.” Hist. Crim. Law i. 397.