Austin & Anor, R v

An acquittal prevents a further trial of the acquitted person, subject to the statutory exception, but does not generally prevent the Crown from alleging in a later trial of alleged co-conspirators that the acquitted person was party to the conspiracy. The trial court must decide whether advancing that allegation and evidence is unfair or improper to the defendants then on trial.

A judge-directed acquittal does not itself establish that there was no evidence of the person’s participation. Nor may other defendants ordinarily invoke the acquitted person’s ECHR rights to prevent their own trial where there is no abuse of process or unfairness.

The appellants were convicted at a retrial of conspiracy to import cocaine. At the first trial, Everett was formally acquitted after an error was found in an agreed evidential schedule. The jury was later discharged and a retrial ordered.

At the retrial, the Crown alleged that Everett was a co-conspirator and relied on surveillance, telephone and text-message evidence concerning him. His Honour Judge Harvey Clark QC ruled that this was permissible. Austin and Tavakolinia appealed against conviction, contending that Everett’s judge-directed acquittal precluded that allegation or made it unfair, and that it infringed Everett’s Article 6(2) rights. They also renewed applications for permission to appeal their sentences.

1. The conviction appeals were dismissed. The court followed R v Mitchell [1964] Crim. L.R. 297. An acquittal protects the acquitted person from being tried again, subject to the narrow statutory exception, but does not create a general bar to the Crown alleging in a subsequent trial of others that the person was a conspirator or adducing relevant evidence of that participation.

2. The relevant question was whether that course would be unfair to the defendants tried at the later trial or otherwise improper. It was not unfair here. Before the first jury was discharged, the appellants knew that the Crown would rely on Mitchell at a retrial. They did not submit that the original trial should instead continue with an appropriate direction to disregard the inadmissible answer.

3. The court rejected the submission that Everett’s acquittal represented a finding that there was no evidence against him. The first judge had treated the alteration of the Crown’s case after the schedule error as unfair. There was nevertheless substantial evidence capable of supporting an allegation that Everett participated in the conspiracy. In any event, the second trial judge was entitled to assess whether sufficient material properly could be left to the jury.

4. The court disapproved the observation of Field J in Gibbins that Mitchell permitted evidence of an acquitted person’s acts but not an allegation that he was a conspirator. Gibbins was factually different because the Crown there had invited acquittals of persons it later alleged were conspirators. Everett’s Article 6(2) rights could not be invoked by the appellants to prevent their own trial, absent unfairness or abuse of process.

5. The convictions were independently safe on the remaining evidence. The court also refused permission to appeal sentence: the 22-year sentence imposed on Austin was amply merited, and Tavakolinia showed no arguable basis for saying that his 11-year sentence was manifestly excessive or wrong in principle.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and refused permission to appeal sentence in [2011] EWCA Crim 345.
• Crown Court at Bournemouth: following a retrial before His Honour Judge Harvey Clark QC, convicted Austin and Tavakolinia of conspiracy to import cocaine and sentenced them to 22 years’ and 11 years’ imprisonment respectively.