The appeal by way of case stated in the “Twitter joke” case (Chambers v DPP) was heard on 8 February 2012 and judgment was reserved. Now, nearly 4 months later, the Judicial Office has announced on Twitter that “Lord Justice Gross has ordered adjournment of case to be heard before constitution of three judges”. In other words, there will be a re-hearing of the appeal (not, contrary to some newspaper reports, of the original trial).
As Paul Chambers’ solicitor, David Allen Green, explains on his “New Stateman” blog, this is because the two judges who heard the case have been unable to agree. A split of this kind is highly unusual – the most recent example that we are aware of is the case of Sheldrake v DPP  EWHC 273 (Admin) in October 2002 where Latham LJ and McCombe J were unable to agree and directed a hearing before a three judge court which took place 4 months later before Clarke LJ and Henriques and Jack JJ who reached a 2:1 decision (which was itself subsequently overturned by the House of Lords).
It seems likely that the case will be reheard before an entirely different Divisional Court – although in former times the practice was to add one more judge to the original court of two and then have the rehearing. This was the position, for example, in the case of In re Pritchard ( Ch. 502) where, having been outvoted 2:1 on what he regarded as an empty technicality Lord Denning made the memorable complaint
“Quite recently in Pontin v. Wood Holroyd Pearce L.J. recalled the proud boast of Bowen L.J.: “‘It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation.‘” The present case, and some others which I have quoted, show that in this year, 1963, the assertion can no longer be made. We have not followed the handwriting of our predecessors. We have marred our copy-book with blots, and the more’s the pity of it”.
There is no statutory provision for an order for a rehearing in the Divisional Court. The closest analogy is the provision for there statutory provision for rehearing in the Court of Appeal. Section 54(5) of the Senior Courts Act 1981 provides that
(a) an appeal has been heard by a court consisting of an even number of judges; and
(b) the members of the court are equally divided,
the case shall, on the application of any part to the appeal, be re-argued before and determined by an uneven number of judges not less than three
Although this case does not involve the Court of Appeal (any appeal from the Divisional Court is to the Supreme Court), the same approach is taken in practice – rehearing before an uneven number of judges, not less than three. No “application” is needed – the order for a rehearing was made of the “the court’s own motion”. Without a rehearing, an evenly divided decision of an appellate court means that the decision of the lower court stands.
The background to the Twitter joke case is set out in Gervase de Wilde’s post on Inforrm. The fresh delay is most unfortunate as the offence for which Mr Chambers was arrested concerns a tweet of 6 January 2010, his initial conviction was on 10 May 2010. All the essential material is gathered by David Allen Green here.
The whole saga of the Twitter joke trial can be followed on twitter, #TwitterJokeTrial.