R v Maxwell

When a conviction is quashed, the Court of Appeal has a broad discretion under section 7(1) of the Criminal Appeal Act 1968 to order a retrial if the interests of justice require it. All material circumstances must be weighed, including the gravity of the alleged offence, the strength and independence of the proposed evidence, prosecutorial misconduct and its effect on confidence in the justice system.

A causal connection between earlier misconduct and the later availability of evidence is relevant but not necessarily decisive. Voluntary admissions made for an accused’s own purposes are not tainted merely because they would not have been made but for a conviction procured by misconduct. An appellate court should interfere with the Court of Appeal’s evaluative judgment only if it was plainly wrong or affected by an error concerning relevant considerations.

The appellant and his brother were convicted of murder and two robberies. The principal prosecution witness was a criminal informant whose evidence had been secured through extensive undisclosed benefits. Police officers concealed those benefits, colluded in the witness’s perjury and gave false evidence during the first appellate proceedings.

Following an investigation and a reference by the Criminal Cases Review Commission, the Court of Appeal (Criminal Division) quashed the convictions in [2009] EWCA Crim 2552. It nevertheless ordered the appellant’s retrial because he had subsequently made voluntary admissions amounting to new and compelling evidence. No retrial was ordered for his brother.

The issue was whether, under section 7(1) of the Criminal Appeal Act 1968, the Court of Appeal could properly conclude that the interests of justice required a retrial despite the grave police misconduct and the fact that the admissions would probably not have existed but for the improperly obtained conviction.

1. Appeal dismissed by a majority of three to two. Lord Dyson, Lord Rodger and Lord Mance held that the Court of Appeal had been entitled to order a retrial. Lord Brown and Lord Collins dissented.
2. Section 7(1) of the Criminal Appeal Act 1968 confers a broad discretion. The Court of Appeal must decide whether the interests of justice require a retrial by weighing all material circumstances. The statutory question is broader than whether permitting a prosecution would constitute an abuse of process. Parliament entrusted this evaluative judgment to the specialist criminal appellate court: per Lord Dyson and Lord Rodger.
3. The Supreme Court could interfere only if the decision was plainly wrong, in the sense that no reasonable court could have made it, or if the Court of Appeal considered an immaterial factor or omitted a material one. Legitimate differences may arise over the weight given to competing considerations. The Court of Appeal had identified and weighed the gravity and persistence of the misconduct, its effect on the trial and first appeal, the causal relationship between the misconduct and the admissions, the period already served, the seriousness of the offences and the compelling evidence of guilt.
4. The fact that the admissions would not have been made but for the improperly obtained conviction was relevant but not determinative. The admissions were made voluntarily and for the appellant’s own purposes. That voluntary choice broke the directness of the causal chain and left the misconduct as background. The evidence was therefore untainted in the material sense that it was neither produced nor intended by the police misconduct: per Lord Dyson, Lord Rodger and Lord Mance.
5. A refusal to order a retrial must not be used merely to discipline the police or express disapproval of historical misconduct. The strong public interest in trying persons against whom compelling evidence exists, particularly for grave crimes, could properly outweigh the competing interest in preserving the integrity of the justice system. The Court of Appeal’s conclusion was difficult but was not plainly wrong.
6. Lord Brown and Lord Collins would have allowed the appeal. They regarded the admissions as sufficiently connected to the misconduct because they would not have existed without the corruptly obtained and initially upheld conviction. In their view, acting on that evidence after such extreme misconduct would compromise the integrity of the criminal process.

1. United Kingdom Supreme Court: By a majority of three to two, dismissed the appeal and upheld the order for a retrial: [2010] UKSC 48.
2. Court of Appeal (Criminal Division): Quashed the convictions following a reference by the Criminal Cases Review Commission, but ordered the appellant to be retried under section 7(1) of the Criminal Appeal Act 1968: [2009] EWCA Crim 2552.
3. Court of Appeal (Criminal Division), 1999: Dismissed renewed applications for leave to appeal after an ex parte public interest immunity hearing at which police officers gave false evidence. No citation is stated.
4. Leeds Crown Court: Convicted the appellant and his brother of murder and two robberies on 27 February 1998.