B(J), R. v

Under sections 76 and 78 of the Criminal Justice Act 2003, a retrial after acquittal requires evidence that is new and compelling, as well as an order in the interests of justice. Compelling evidence must be reliable, substantial and highly probative. The court must decide whether the evidence is reliable; its mere capacity to be true, or to support a case to answer, is insufficient.

The demanding threshold reflects the continuing importance of finality in criminal proceedings. In assessing an accomplice’s evidence, conformity with known facts does not by itself demonstrate reliability where both a truthful and a false account could conform to those facts.

B(J) had been acquitted of violent offences committed during a single expedition. Two co-accused had denied involvement at trial but were convicted.

After the trial, one co-accused entered an agreement under section 74 of the Serious Organised Crime and Police Act 2005. He made statements implicating B(J) and seeking advantages affecting his own sentence. The Crown applied under section 76 of the Criminal Justice Act 2003 to quash B(J)’s acquittals and order a retrial.

The central issue was whether that new accomplice evidence had been shown to be reliable and therefore compelling within the statutory scheme.

1. The Crown’s application was refused. The proposed retrial could be ordered only if the evidence was new and compelling under sections 76 and 78 of the Criminal Justice Act 2003, and if a retrial was in the interests of justice under section 79.
2. The evidence was new and substantial. If true, it was an eyewitness account placing B(J) at the offences and actively participating. Reliability and high probative value were inseparable on these facts: if the account were reliable and true, it would be highly probative.
3. The statutory question was not whether the evidence might be reliable or whether it could found a case to answer. It was whether it had been shown to be reliable. The word compelling requires a stringent assessment because the legislation creates a limited exception to the normally final character of an acquittal. The court followed the approach in R v A [2008] EWCA Crim. 2908, while recognising that the court must independently decide whether the statutory requirements are met.
4. The evidence failed that test. The co-accused had a powerful interest arising from his agreement under section 74 of the Serious Organised Crime and Police Act 2005 and his hope of a reduced sentence. His account was bound up with his assertion that his own role was minimal, was presently implausible, and followed past fluent lying. Its consistency with facts proved at trial did not establish reliability, because a false as well as a true account could conform to those facts. The proposed corroboration either concerned other participants or carried the same doubts.
5. The court also ordered, under section 4(2) of the Contempt of Court Act 1981, that the unreported main judgment should not be published pending completion of related proceedings and any relevant appeals.

• Court of Appeal (Criminal Division) — in [2009] EWCA Crim 1036, refused the Crown’s statutory application to quash B(J)’s acquittals and order a retrial.
• Trial court — B(J) was acquitted of the relevant offences; two co-accused were convicted. The court and citation are not stated in the judgment.