G(G) and B(S), R. v

Under Criminal Justice Act 2003, an acquittal may be quashed only where there is new and compelling evidence and a retrial is in the interests of justice. The statutory threshold is exacting. Evidence which merely gives an acquitted person a case to answer is insufficient. It must be demonstrated to be reliable and of a kind which cannot realistically be disputed.

The interests-of-justice assessment is not confined to specified factors. A manipulative informant's conduct is relevant, but the principal question is whether the acquittal is transparently wrong. Where the proposed witness has repeatedly tailored false accounts to serve personal interests, his new account will not be compelling merely because a jury might be able to accept it.

Two respondents had been acquitted at the Central Criminal Court of active participation in a shooting murder. A former co-accused was convicted after denying that he was present. He later entered an agreement under section 74 of the Serious Organised Crime and Police Act 2005 and made a statement implicating the respondents.

The Crown applied under section 76 of the Criminal Justice Act 2003 to quash the acquittals and order a retrial. It relied principally on the former co-accused's new evidence, with two further items said to support it. The central issue was whether the evidence was compelling and, if so, whether a retrial would be in the interests of justice.

1. The Crown's application was refused. An order under section 76 of the Criminal Justice Act 2003 requires both new and compelling evidence under section 78 and an interests-of-justice finding under section 79. The Court applied the demanding nature of those requirements.
2. The new evidence threshold is materially higher than the existence of a case to answer. Finality after a properly conducted trial is the normal rule. An acquittal should be reopened only on compelling new evidence of guilt which is demonstrated to be reliable and cannot realistically be disputed.
3. The specific matters identified by section 79 are not exhaustive. The Court must assess all the circumstances. Deliberate manipulation by a prospective informant is relevant, but the principal concern is the position of the acquitted person and whether an apparently wrong acquittal damages confidence in criminal justice. As recognised in R v P; R v Blackburn [2007] EWCA Crim 2290, criminal informants may be a practical necessity. Their self-interested conduct does not automatically prevent a retrial if their evidence is truly compelling.
4. Here, the former co-accused had shown himself willing to give detailed and tailored false accounts to secure and retain a substantial sentence reduction. Although some other material supported parts of his new account, other parts were inconsistent. His evidence was not demonstrated to be reliable or compelling. The Court was not deciding whether a jury could properly accept him; that question is less exacting than the statutory test in section 78.
5. The Court also ordered, under section 4(2) of the Contempt of Court Act 1981, that the detailed judgment could not be reported pending completion of related proceedings and any relevant appeal period.

• Court of Appeal (Criminal Division): The Crown's application to quash the acquittals and direct a retrial was refused: [2009] EWCA Crim 1077.
• Central Criminal Court: The respondents were acquitted of active participation in murder by shooting. No citation for the acquittals is stated in the judgment.