G(G) & Anor, R. v

Under section 76 of the Criminal Justice Act 2003, an acquittal may be quashed and a retrial ordered only where there is both new and compelling evidence and it is in the interests of justice to do so. Evidence is not compelling merely because it could leave an accused with a case to answer. It must be demonstrated to be reliable to the exacting statutory standard.

When a former co-accused offers self-serving assistance after conviction, the court must assess whether the evidence is truly reliable. A fluent and adaptable witness with a powerful personal incentive to lie will not ordinarily provide compelling evidence without convincing confirmation.

G(G) and B(S) had been acquitted of active participation in a shooting murder. A third defendant was convicted after the jury rejected his account that he had not been present.

After conviction, the third defendant entered an agreement under section 74 of the Serious Organised Crime and Police Act 2005 and made a statement implicating the acquitted men. The Crown applied under section 76 of the Criminal Justice Act 2003 to quash their acquittals and order retrials.

The central issue was whether the former co-defendant's evidence, considered with other new material, was sufficiently reliable and compelling to justify the exceptional reversal of an acquittal.

1. The Crown's application was refused. The statutory power under section 76 of the Criminal Justice Act 2003 is exceptional. It requires both new and compelling evidence under section 78 and an order in the interests of justice under section 79.

2. The Court applied the principles recently stated in R v B(J) [2009] EWCA Crim 1036. It held that compelling evidence must be shown to be reliable. It is insufficient that the proposed evidence could properly be left to a jury, or that it creates a case to answer. The ordinary finality of an acquittal is displaced only by evidence of guilt that is compelling in the statutory sense.

3. The former co-defendant's account did not meet that standard. He had a strong interest in obtaining and retaining a substantial sentence reduction. He had shown himself willing to adapt his account to serve his own purposes, including by adding invented detail after entering the debriefing process. Some other material offered support, but other material was inconsistent with his account. The Court could not conclude that his evidence was demonstrated to be reliable.

4. The Court also observed that the specified section 79 considerations are not exhaustive. Deliberate manipulation by a prospective witness may be relevant, but the principal inquiry concerns the acquitted defendant and whether a transparently wrong acquittal damages confidence in the criminal justice system. The practical necessity of using criminal informants, noted in R v P; R v Blackburn [2007] EWCA Crim 2290, did not lower the section 78 threshold.

5. Under section 4(2) of the Contempt of Court Act 1981, the Court ordered that its detailed judgment should not be reported pending completion of related proceedings and any relevant appeal period.

• Court of Appeal (Criminal Division): Refused the Crown's statutory application to quash the respondents' acquittals and order retrials under section 76 of the Criminal Justice Act 2003.
• Trial court: The respondents had been acquitted of active participation in murder. The court and citation are not stated in the judgment.