B, R. v

For the retrial provisions in Criminal Justice Act 2003, evidence is new if it was not adduced in the proceedings resulting in the acquittal. Mere availability at the original trial does not prevent evidence from being new. A trial judge’s consideration of material solely to decide its admissibility does not amount to its being adduced. Where the judge excludes the material, it was not placed before the jury as admissible evidence and may satisfy section 78(2). Evidence may therefore be new even where it was available, but was wrongly excluded, at the original trial.

At the respondent’s 1999 trial, the judge excluded DNA-match evidence. He treated sections 61 to 65 of the Police and Criminal Evidence Act 1984 as an exhaustive code and, alternatively, would have excluded the evidence under section 78 of that Act. The Crown then offered no evidence.

An Attorney General’s reference followed. The House of Lords, in Attorney General's Reference No 3 of 1999 [2001] 1 Cr App R 34, held that the statutory basis for excluding the DNA evidence was wrong, but did not decide the discretionary ruling. On the present application under the Criminal Justice Act 2003, the DNA evidence was accepted as compelling. The issue was whether evidence considered by the trial judge but ruled inadmissible had been adduced in the earlier proceedings.

Decision

1. The court determined that the DNA evidence satisfied the new-evidence requirement in section 78(2) of the Criminal Justice Act 2003. It was also accepted to be reliable, substantial and highly probative, and therefore compelling under section 78(3).

2. “Proceedings” in sections 75 to 79 covers the whole process resulting in the original acquittal. That does not mean that every item available for use during that process was adduced. Section 78(2) concerns admissible evidence capable of being deployed against the accused.

3. The trial judge necessarily considered the DNA material when deciding whether it could be placed before the jury. That consideration was for the limited purpose of deciding admissibility. Once the judge excluded the evidence, it was not adduced as evidence at the trial and the Crown could not deploy it before the jury.

4. The judge’s statutory ruling had already been held wrong in Attorney General's Reference No 3 of 1999 [2001] 1 Cr App R 34. The Court of Appeal held that the wrongly excluded DNA evidence, together with any further evidence from investigation of the relevant material, was new for section 78(2). Parliamentary material supported the conclusion that Parliament deliberately adopted a test based on whether evidence was actually adduced, rather than whether it had been available.

No further operative order is stated in the supplied judgment text.

• Court of Appeal (Criminal Division): On the present application, the court held that the excluded DNA evidence had not been adduced in the proceedings and was new evidence under section 78(2) of the Criminal Justice Act 2003.

• House of Lords: In Attorney General's Reference No 3 of 1999 [2001] 1 Cr App R 34, the House held that the trial judge was wrong to treat sections 61 to 65 of the Police and Criminal Evidence Act 1984 as making the DNA evidence inadmissible. It did not determine the section 78 discretionary issue.

• Court of Appeal: In May 2000, the court upheld the trial judge’s ruling but referred the statutory-construction question to the House of Lords.

• Trial court: In 1999, the judge excluded the DNA evidence. The Crown offered no evidence because the case could not proceed without it.