Appeals Court judges are considering whether two men who walked free after a jury could not decide if they had plotted to kill five witnesses should face a retrial.

The three high-ranking judges must first decide if they even have a right to pass judgment on the matter and, providing they decide that they do, must then weigh up whether the men should be brought back to face another trial.

At the moment Kenneth Sinclair Durrant and Javon Ernest Gardner are free, having been cleared by a Supreme Court jury last November of a charge of attempting to pervert the course of justice.

The jury was unable to agree on a verdict for the other charges the men faced, which were conspiracy to kill people who happened to be likely witnesses in a separate Magistrates’ Court case involving Mr. Gardner.

Before a retrial on the undecided matters could be held, Puisne Judge Carlisle Greaves, who heard the original trial, ruled out a further trial.

In February this year he stated the charge of attempting to pervert the course of justice — to which the men had been cleared by a jury — “encapsulated” the five individual conspiracy to kill charges.

Presenting an argument that the Court of Appeal has a right to hear an appeal for a retrial Department of Public Prosecutions Director Vinette Graham Allen said the matters against the two men amounted to an active indictment at the time Mr. Justice Greaves ended proceedings and that he had erred on a point of law in making that decision.

However, responding on behalf of Mr. Durrant and Mr. Gardner respectively, John Perry QC and Paul Mendelle QC have countered that the indictment proceedings were not active and that Mr. Justice Greaves had made his judgment not solely on matters of law.

If the two Queen’s Counsels are correct the Court of Appeal Judges have no jurisdiction to hear an appeal on the matter.

Court of Appeal President Justice Edward Zacca and Justices Sir Anthony Evans and Sir Charles Mantell have still to decide if they should hear any retrial appeal, but regardless asked the two legal teams to continue to put forward their retrial arguments.

President Mr. Justice Zacca and Sir Charles wondered if there was any difference in the evidence presented for the five conspiracy charges and the attempting to pervert the course of justice allegation.

Mrs. Graham Allen said she did not believe the evidence was identical but was unable to find an example in the moment.

However, Sir Anthony offered what he termed “might be a thread” for the DPP’s argument when he noted that Mr. Durrant may not have known there was an attempt to pervert the course of justice because he was not involved in Mr. Gardner’s Magistrates’ Court trial.

Therefore there was a possible argument that Mr. Durrant viewed the alleged conspiracy to kill the five individuals as merely that, and not that it was an attempt to pervert the course of justice by getting rid of potential witnesses in an ongoing trial.

Deliberations on whether the Court of Appeal Judges have jurisdiction to order a re-trail are ongoing.