A, R v

Under Part 10 of the Criminal Justice Act 2003, an acquittal must be quashed and a retrial ordered where the statutory conditions are met. New and compelling evidence need not be direct evidence of the qualifying offence. It is enough that admissible evidence is reliable, substantial and highly probative of guilt in the context of the issues left by the first trial. The interests-of-justice inquiry is not confined to the listed statutory factors, but finality cannot independently restore the abolished double-jeopardy rule. A retrial should not be ordered where the proposed prosecution is already irremediably flawed. Evidence underlying charges of which the accused was acquitted may nevertheless be admissible, and does not itself make a retrial unfair.

In 2004, A was acquitted at the Crown Court at Exeter of two indecent assaults and the rape of SN, alleged to have occurred in 1991. The Crown Prosecution Service applied under Part 10 of the Criminal Justice Act 2003 to quash the rape acquittal and order a retrial.

After the acquittal, further investigation produced allegations from seven other complainants of sexual misconduct by A over many years. The Crown relied on their evidence as similar-fact and propensity evidence, together with related admissions and evidence from the former wife who had been in the tent on the alleged night of rape. The central issues were whether this indirect evidence was new and compelling in relation to the rape, and whether a retrial would be in the interests of justice.

1. The Crown's application was allowed. The court quashed A's acquittal for rape and ordered a retrial. Rape was a qualifying offence under Part 10 of the Criminal Justice Act 2003.
2. Consent by the Director of Public Prosecutions under section 76 was a prerequisite, but did not determine the application. The court had to decide independently whether sections 78 and 79 were satisfied. Once those requirements were met, section 77(1) required the court to make the order; it retained no broad residual discretion to refuse it.
3. Section 78 did not confine new and compelling evidence to direct proof of the particular rape. The decisive question was whether the evidence was admissible and highly probative of whether the respondent committed the qualifying offence. Evidence of independent complaints displaying a materially similar pattern of abuse was capable of meeting that test, even though no new witness directly proved the rape. On the material before the court, the evidence was apparently reliable and substantial, and made a conviction highly probable.
4. The interests-of-justice inquiry under section 79 required consideration of the specified factors and any other relevant circumstances. The finality principle could not be used to recreate the double-jeopardy prohibition abolished by Parliament. A retrial could nevertheless be contrary to the interests of justice if the prosecution case at the first trial was so fundamentally deficient that a further prosecution had no very good prospect of conviction. That threshold was not met: the complainant's credibility had not been destroyed, and the new evidence placed her allegation in a markedly different evidential context.
5. The earlier acquittals for indecent assault did not make the rape retrial unfair. Applying R v Z [2002] 2 AC 483, factual evidence underlying an acquitted charge could still be admissible, notwithstanding its tendency to suggest guilt of that charge. The evidence of the alleged grooming conduct could therefore be placed before the retrial jury, subject to the ordinary evidential rules.

• Court of Appeal (Criminal Division): Allowed the Crown's Part 10 application under the Criminal Justice Act 2003, quashed the rape acquittal and ordered a retrial.
• Crown Court at Exeter: In 2004, acquitted A of two counts of indecent assault and one count of rape.