Weston, R v

Under Criminal Justice Act 2003 Part 10, evidence is new if it was not adduced at the acquitted person’s trial, even if it existed but was then undiscovered. Evidence is compelling only if it is reliable, substantial and, in the context of the outstanding issues, highly probative of the case against that person.

When deciding whether a retrial is in the interests of justice, the court must assess the statutory factors and the circumstances as a whole. Delay, weakened memories and missing trial material do not prevent a retrial where the new evidence is compelling, a fair trial remains possible, and the delay has caused no significant prejudice.

In 1996, Mark Weston was acquitted at Oxford Crown Court of murdering Vikki Thompson. Following a later review, forensic examination of boots seized from him identified wet blood matching the deceased’s DNA at the base of the tongue of one boot.

The Director of Public Prosecutions applied under Part 10 of the Criminal Justice Act 2003 to quash the acquittal and order a retrial. The court heard forensic evidence about the original examinations, the later DNA findings, possible contamination, delay, lost trial transcripts, deceased witnesses and missing exhibits.

The central questions were whether the evidence was new and compelling, and whether a retrial was in the interests of justice.

1. The application was granted. The court quashed the acquittal and ordered a retrial under section 77(1) of the Criminal Justice Act 2003.

2. The DNA evidence was new within section 78(2). Parliament had defined new evidence as evidence not adduced at the proceedings ending in acquittal. The fact that the blood may have been present on the boot in 1995 and 1996, but was not then detected, did not alter that conclusion.

3. The evidence was compelling within section 78(3). It was accepted that the blood at the relevant area of the boot was the deceased’s and had been deposited while wet. The court found post-attack transfer, contamination and other explanations highly improbable. The overwhelming probability was that the blood was deposited by direct contact with the deceased or by spattering during the attack. It was therefore reliable, substantial and highly probative; in practical terms, it was decisive.

4. A fair retrial remained possible. The court gave weight to the passage of time, the risk that recollections in a small village might have been contaminated, and the destruction of trial transcripts. It also noted safeguards available at trial, including directions to the jury and the prosecution’s undertaking not to call witnesses whose original evidence had been materially undermined and could not fairly be tested.

5. The original forensic examiners had not been shown to lack due diligence. Bloodstains on dark, uneven boots could be missed by competent scientists, and the original examinations used less effective lighting, less flexible microscopy and no second check of the same areas. The later reinvestigation had initially proceeded without sufficient diligence or urgency, but the delay had caused no significant prejudice in light of the new evidence.

6. As an observation for future cases, where scientific testing is known to be fallible, every effort should be made to secure accuracy in the original investigation. Part 10 should not be treated as a means of relying on a later retrial to correct known shortcomings.

• Court of Appeal (Criminal Division) — Granted the Director of Public Prosecutions’ application under Part 10 of the Criminal Justice Act 2003, quashed the acquittal and ordered a retrial.
• Oxford Crown Court — In 1996, Weston was tried before Jowitt J for murder and acquitted.