Colman & Anor v R

An acquittal prevents a defendant from being tried or punished again for the same offence. It does not conclusively establish factual innocence or resolve every factual issue in the defendant’s favour. Evidence connected with the acquitted allegation may be used on a different charge if it is relevant and fair to admit it. The acquittal is a relevant factor, not an evidential bar. Article 6(2) does not prevent that use of evidence. In sentencing, consecutive terms for offences within one course of criminality must produce a proportionate overall sentence.

At Winchester Crown Court, Robert Colman and Wayne Terry were convicted of serious and organised dishonesty offences, including aggravated burglary, handling stolen computer equipment and vehicle theft. Terry’s conviction appeal concerned recorded conversations in a car and voice-identification evidence. Four other counts had ended in acquittals after the trial judge excluded unsupported expert evidence.

The judge allowed the jury to learn of the acquittals, but refused to direct that they conclusively proved that Terry was absent from the car or not a speaker. He also ruled that, if the defence relied on the acquittals to challenge the remaining recordings, the prosecution could adduce rebuttal evidence. Both appellants also challenged total sentences of ten years’ imprisonment.

1. Terry’s appeal against conviction was dismissed. The trial judge correctly distinguished the rule against double jeopardy from the admissibility of evidence relevant to a different charge. A verdict of not guilty is conclusive only of legal innocence on that particular charge. It does not establish that every factual issue was resolved in the defendant’s favour, or prevent relevant and fairly admissible evidence from being used on a later, distinct charge.
2. The judge was therefore entitled to admit the fact of the acquittals as potentially relevant, while refusing the requested direction that they proved Terry had not been in the car or had not spoken in the excluded recordings. If the defence had used the acquittals to advance that wider factual contention, fairness permitted the prosecution to call relevant rebuttal evidence. The expert’s stated need for supporting evidence was a qualification affecting weight and fairness, not a legal condition of admissibility. Its absence did not mean that she had no opinion or that her opinion had no evidential weight.
3. The court applied the approach in R v Z [2000] 2 AC 483. It held that the broad statements in Sambasivam v Pubic Prosecutor, Federation of Malaya [1950] AC 458 and R v Hay (1983) 77 Cr App R 70 required qualification. The critical questions were relevance and fairness, provided the defendant was not placed in double jeopardy.
4. The Strasbourg authorities concerning compensation after acquittal did not alter that result. Article 6(2) of the European Convention of Human Rights prohibits the voicing of suspicion in that context, but did not prevent proof of a different offence by relevant and fairly admitted evidence of conduct connected with an acquitted charge.
5. The appeals against sentence were allowed to a limited extent. The handling offence was serious enough to justify a consecutive element, but it occurred close in time and shared important factual features with the other offending. A consecutive three-year term produced a disproportionate total. The court substituted six years for aggravated burglary and two years consecutive for handling, resulting in total sentences of eight years’ imprisonment for each appellant.

• Court of Appeal (Criminal Division): In [2004] EWCA Crim 3252, Terry’s appeal against conviction was dismissed. Both appeals against sentence were allowed only to reduce the total terms from ten years to eight years.
• Winchester Crown Court: Before His Honour Judge Broderick and a jury, the appellants were convicted of dishonesty offences and each received a total sentence of ten years’ imprisonment.