Dobson, R v

For the purposes of section 78 of the Criminal Justice Act 2003, evidence is compelling if it is reliable, substantial and appears highly probative in the context of the outstanding issues. It need not be irresistible or incapable of challenge. A realistic defence case must be assessed, but does not itself prevent the statutory test being met.

Once that test is satisfied, section 79 requires an all-the-circumstances assessment of the interests of justice. Its specified factors are not exhaustive. A retrial must remain fair, but extensive historic publicity and substantial delay do not make it unfair where jury safeguards and judicial directions can secure a fair trial, and the delay causes no material prejudice.

In 1996, following a private prosecution for the murder of Stephen Lawrence, Curtis J excluded the identification evidence of Duwayne Brooks. The remaining evidence was insufficient and Gary Dobson was acquitted.

The Director of Public Prosecutions applied under section 76 of the Criminal Justice Act 2003 to quash that acquittal and order a retrial. New forensic examinations of a jacket and cardigan recovered from Dobson’s home identified blood matching Stephen Lawrence and fibres linked with his clothing. Dobson contended that the findings could have resulted from contamination during the lengthy and flawed handling of exhibits.

The central questions were whether the evidence was new and compelling under section 78 and whether a retrial would be in the interests of justice under section 79, despite delay and extensive publicity.

1. Application granted. The court quashed Dobson’s 1996 acquittal and ordered a new trial under the Criminal Justice Act 2003.
2. Section 78. Evidence is compelling if, and only if, it is reliable, substantial and appears highly probative of guilt in the context of the outstanding issues. The statutory test does not require irresistible proof or require the court to decide guilt. A defence argument directed to reliability or probative value must be examined. It prevents an order only if it shows that one of the three statutory elements is not met. The court explained R v (G), B (S) [2009] EWCA Crim 1207 as emphasising the exceptional nature of quashing an acquittal and the need clearly to establish reliability.
3. Reliability and probative value. The forensic evidence was new, substantial and highly probative. The court accepted that poor exhibit handling had created hypothetical opportunities for contamination, but found no realistic opportunity capable of explaining the blood, DNA and fibre findings. The evidence reliably showed that the relevant garments had been worn by someone in very close proximity to the attack. It was for a jury, not the court, to decide guilt at any retrial.
4. Section 79. The statutory interests-of-justice factors are not exhaustive. The court applied the safeguards identified in Montgomery v HM Advocate [2003] 1 AC 641, R v Abu Hamza [2007] 1 Cr App R27 and Re B [2006] EWCA Crim 2692. Historic publicity created a non-negligible risk of residual prejudice, but a properly directed jury could try the case fairly. Although the delay was significant and earlier investigations lacked diligence, the scientific evidence would not have been appreciated at the first trial even with proper diligence, and the delay caused no real prejudice to the defence.

• Court of Appeal (Criminal Division): Granted the Director of Public Prosecutions’ statutory application, quashed Dobson’s acquittal and ordered a new trial: [2011] EWCA Crim 1255.
• Central Criminal Court: In April 1996 Curtis J ruled the purported identification evidence inadmissible. The jury was directed to acquit Dobson after the private prosecution offered no further evidence.