Miell, R v

On an application to quash an acquittal, the court must dismiss the application unless the statutory conditions for a retrial are met. Under section 78 of the Criminal Justice Act 2003, new evidence must be reliable, substantial and highly probative of the disputed issue before it is compelling.

The court must make that assessment for itself. A subsequent conviction for perjury based on a guilty plea, and any evidential consequence it may have at a retrial, does not itself establish that the underlying confession is compelling evidence. Material falsehoods within a confession and a credible basis for its retraction may prevent the statutory test from being met.

The respondent had been acquitted of murder at Oxford Crown Court in 1996. After the acquittal, he made repeated admissions that he had committed the murder, including a formal confession to the police. He pleaded guilty to perjury arising from his evidence at the murder trial.

In 2007 he retracted the admissions. He said that the confession had been a planned fabrication. The Crown Prosecution Service applied under section 76 of the Criminal Justice Act 2003 to quash the acquittal and order a retrial.

The central issue was whether the later admissions, the guilty plea to perjury and the retraction amounted to new and compelling evidence, and whether a retrial was in the interests of justice.

1. Application dismissed. The later admissions, including the confession underlying the respondent’s perjury conviction, were new evidence. However, the court was not satisfied that they were compelling evidence within section 78 of the Criminal Justice Act 2003. Section 77 therefore required dismissal.
2. Evidence is compelling only if it is reliable, substantial and, in the context of the outstanding issues, highly probative. The outstanding issue was who killed the deceased. The court had to assess the evidence as a whole, rather than assume that a voluntary confession against interest was true.
3. The formal confession contained material and demonstrable falsehoods. It asserted that both stab wounds were inflicted with one knife, although the forensic evidence showed that different knives caused them. Other details, including the alleged use of a broken bottle and the asserted background events, were unsupported or inconsistent with the evidence. The respondent’s retraction showed that he knew of some of those inconsistencies when he confessed.
4. Those defects could leave a jury in the same doubt as the jury at the original trial. The court therefore found that the new evidence was not reliable or highly probative enough to be compelling. The fact that the respondent had pleaded guilty to perjury did not alter that conclusion. Although section 74(3) of the Police and Criminal Evidence Act 1984 might give the perjury conviction evidential effect at a retrial, section 78 required the court itself to decide whether that conviction was compelling evidence of murder.
5. Obiter, if the court had not been required to make its own assessment under section 78, it would have regarded a retrial as contrary to the interests of justice because of its doubts about the perjury and the apparent practical shift of the burden of proof which section 74 could produce.

• Court of Appeal (Criminal Division): On the Crown Prosecution Service’s statutory application, the court dismissed the application to quash the acquittal and order a retrial: [2007] EWCA Crim 3130.
• Crown Court at Oxford: The respondent was acquitted of murder on 11 June 1996.