D, R. v

Under Part 10 of the Criminal Justice Act 2003, the Court of Appeal must quash an acquittal and order a retrial where there is new and compelling evidence and a retrial is in the interests of justice.

Pre-trial publicity and elapsed time do not of themselves make a fair retrial unlikely. The court must assess their actual effect on trial fairness, including whether effective jury management is available and whether the evidence and trial materials remain available.

Retrospective application of the statutory exception to double jeopardy is not unjust merely because an acquitted person confessed while believing that a retrial was impossible. Where the evidence is overwhelming, reliable trial remains possible, and the offence is murder, the public interest in an accurate outcome may require a retrial.

The Crown applied, with the written consent of the Director of Public Prosecutions, under Part 10 of the Criminal Justice Act 2003 to quash D’s acquittal for murder and order a retrial.

Two earlier juries had failed to agree. The Crown then offered no evidence and a not-guilty verdict was recorded. Subsequently, D made repeated admissions that he had killed the victim and pleaded guilty to two counts of perjury arising from his denials of guilt at the earlier trials.

D accepted that the evidence was new and raised no positive challenge to its compelling quality. He contended that a retrial was not in the interests of justice because of publicity, delay, and his reliance on the former double-jeopardy rule when making the admissions.

1. The application was granted. The court quashed D’s acquittal and ordered a retrial for murder under Part 10 of the Criminal Justice Act 2003. Murder was a qualifying offence. The evidence of D’s confessions and perjury convictions was new and compelling, and no contrary case was advanced.

2. Section 77 required the order once the requirements of sections 78 and 79 were satisfied. The admissions were not merely compelling but overwhelming. Their use was not rendered unfair by the fact that D may have believed himself immune from a further murder trial when he made them.

3. Publicity did not make a fair trial unlikely. The court applied the approach in R v Kevin Maxwell and Ian Maxwell and noted that the publicity there, and in R v Stone, was more intense. Proper jury-selection and management techniques could secure an impartial jury. Further, the legitimate prejudicial force of D’s confessions and his perjury conviction, subject to section 74(3) of the Police and Criminal Evidence Act 1984, substantially outweighed any recalled publicity.

4. The lapse of time did not independently make a retrial unjust. Delay between an acquittal and retrial has no special quality that distinguishes it from long-delayed prosecution of historic offending. No actual unfairness in the conduct of a retrial was established, and the nine-month period before the application was not unreasonable.

5. R v Kirk was distinguishable. In that case police knew that the suspect faced a more serious offence than the one disclosed. Here neither the police nor D knew that a later statutory change could expose him to retrial. The court concluded that justice required the statutory exception to double jeopardy to be applied.

• Court of Appeal (Criminal Division): granted the Crown’s application under Part 10 of the Criminal Justice Act 2003, quashed the acquittal and ordered a retrial: [2006] EWCA Crim 1354.
• Newcastle Crown Court: two juries failed to agree on the murder charge. The Crown then offered no evidence and a not-guilty verdict was recorded.