Benguit, R. v

A second retrial after two juries have failed to agree is not barred by law. Whether it should proceed depends on a dispassionate assessment of the interests of justice, including any prejudice to the defendant and the public interest in trying a serious allegation.

Evidence tendered to show that a defendant is the sort of person who carries a knife is bad-character evidence. Under the Criminal Justice Act 2003, it must satisfy a statutory gateway and must be excluded if its admission would adversely affect the fairness of the proceedings. A failure expressly to apply that statutory framework does not render a conviction unsafe where the judge would inevitably have admitted the evidence under it.

The appellant was convicted of murder at Winchester Crown Court on 31 January 2005 and sentenced to life imprisonment. This was his second retrial after two earlier juries had failed to agree on the murder count.

Before the second retrial, Hallett J rejected a submission that a further trial would be an abuse of process because it was oppressive, vexatious or unjust. At trial, she admitted evidence from two witnesses that they had seen the appellant with, or sharpening, a knife at about the relevant period.

The appellant appealed against the refusal to stay the prosecution and against the admission of that evidence.

1. Appeal dismissed. The conviction for murder was safe.
2. There was no legal rule preventing a second retrial after two juries had disagreed. Applying the principles stated by Lord Bingham in Bowe v R, [2001] UKPC 19, the question was whether the interests of justice in their widest sense justified it. That assessment required account of the defendant’s interests, including delay and trial prejudice, and the public interest in convicting the guilty and maintaining confidence in criminal justice. Hallett J had properly considered those matters. Her conclusion that the trial was neither oppressive, vexatious nor unjust was within her discretion and was correct.
3. The evidence that the appellant carried or sharpened a knife was bad-character evidence. It was not evidence directly concerning the alleged facts of the murder for section 98 of the Criminal Justice Act 2003. As the statutory provisions were in force, admissibility had to be determined under that Act, consistently with R v Bradley, [2005] 1 Cr.App.R 24, rather than under the common-law approach used by the trial judge.
4. The evidence was capable of passing the section 101(1)(d) gateway because it was relevant to the important issue whether the appellant was a person who carried a knife. Its uncertain timing and circumstances went to relevance and weight. The judge had considered its prejudicial features and found its probative value outweighed them. There was no basis to conclude that, had she expressly applied section 101(3), she would have excluded it as unfair. The erroneous legal route therefore did not undermine the safety of the conviction.

• Court of Appeal (Criminal Division) dismissed the appeal against conviction for murder.
• Crown Court at Winchester convicted the appellant of murder on 31 January 2005 and imposed life imprisonment. The trial was a second retrial after two earlier juries had failed to agree on the murder count.