Dobson, R v

Under Criminal Justice Act 2003 section 78, evidence is compelling only if it is reliable, substantial and appears highly probative in the context of the issues outstanding at the acquitted person's trial. The test does not require irresistible proof or exclude an order merely because a realistic defence argument can be made. That argument must instead be evaluated when assessing the three statutory elements.

The interests-of-justice assessment under section 79 is wider than its specified factors. It requires particular attention to the prospect of a fair retrial, delay and prosecutorial diligence. If the requirements of both sections are met, the court must quash the acquittal and order a retrial.

Stephen Lawrence was killed in a racially motivated group attack in April 1993. In a private prosecution at the Central Criminal Court in April 1996, Gary Dobson and two others were tried for murder. Following the exclusion of purported identification evidence, the jury was directed to acquit.

The prosecution applied under section 76 of the Criminal Justice Act 2003 to quash Dobson’s acquittal and order a retrial. It relied on newly obtained scientific evidence from items of Dobson’s clothing. Dobson contended that the evidence was contaminated and that sustained publicity would prevent a fair trial.

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

1. The application was granted. The court quashed Dobson’s acquittal and ordered a retrial. Its decision did not determine guilt. The allegation had to be decided afresh by a jury, and the presumption of innocence continued to apply.

2. Section 78 of the Criminal Justice Act 2003 contains a complete definition of compelling evidence. The evidence need not be irresistible and the court must not usurp the jury’s role. A realistic defence argument does not automatically prevent a retrial. It must be assessed for its effect on reliability, substantiality and probative value; if it undermines any of those elements, the statutory test is not met.

3. The court concluded, after its detailed examination of the evidence, that sufficient reliable and substantial new scientific evidence justified quashing the acquittal. The evidence could place Dobson in very close proximity to Stephen Lawrence at, and immediately after, the attack. If accepted, a jury could find participation in the group attack and consequent liability for murder or manslaughter.

4. Section 79 requires a broader interests-of-justice assessment. Its listed criteria are important but not exhaustive. The court must consider whether delay, investigatory or prosecutorial lack of diligence, publicity or any other circumstance makes a fair retrial unlikely. The court decided that the material concerning publicity did not prevent a fair trial.

5. There was no lesser statutory standard because the original acquittal followed a private prosecution. Once the requirements of sections 78 and 79 were satisfied, section 77 required the order. The proceedings were active under the Contempt of Court Act 1981; future reporting had to protect the fairness of the retrial.

• Court of Appeal (Criminal Division) — In [2011] EWCA Crim 1256, the court granted the prosecution’s application under section 76 of the Criminal Justice Act 2003, quashed R v Dobson's 1996 acquittal and ordered a retrial.
• Central Criminal Court — In April 1996, in a private prosecution for murder, the trial judge excluded purported identification evidence and directed the jury to acquit Dobson and two co-defendants.