Hussain, R v

A further criminal trial may be permanently stayed where, on a fact-sensitive and cumulative assessment, it would be oppressive and unjust. Relevant matters include delay and its causes, prior trials, seriousness, changes to the case, and the defendant’s health and the effect of the proceedings. Those matters are not exhaustive.

There is no automatic bar to a third trial after two jury disagreements. On a prosecution appeal under section 67 of the Criminal Justice Act 2003, the Court of Appeal does not remake the discretionary decision. It may intervene only if the ruling involved legal error or was one no reasonable judge could make.

The respondent had faced a lengthy first trial on an indictment concerning the sexual exploitation of several young people. That trial ended when the jury was discharged. At his severed retrial, he was acquitted on the count concerning HS, but the jury could not agree on counts alleging sexual activity with AL.

Before a proposed further trial, a supporting witness was no longer to be called by the Crown and the respondent was diagnosed with a moderately severe depressive illness. Medical evidence stated that he was unfit to stand trial for at least six months. The judge at Wolverhampton Crown Court stayed the remaining counts as oppressive and unjust.

The Crown sought leave to appeal under section 58 of the Criminal Justice Act 2003. It alleged no error of law, but contended that the permanent stay was unreasonable. The central issue was whether the judge’s cumulative assessment could reasonably support that conclusion.

1. The court refused the Crown leave to appeal, confirmed the stay, and ordered the respondent’s acquittal on the outstanding counts under section 61(3) of the Criminal Justice Act 2003.

2. A further trial may be stayed as an abuse of process where it would be oppressive and unjust. The assessment is fact-sensitive. The relevant considerations identified in R v Henworth [2001] EWCA Crim 120 include delay and its causes, the results of earlier trials, the seriousness of the offences, and changes in the case to be met. They are not exhaustive. The defendant’s circumstances, health and the effect of proceedings on health may also be material.

3. A third trial is not prohibited merely because two previous juries have disagreed. R v Bell [2010] EWCA Crim 3 addressed that different situation. Here, the question was whether the particular cumulative circumstances made a further trial oppressive.

4. The judge was entitled to accept the medical evidence, including its conclusion that the respondent was not malingering and was presently unfit for trial. He was also entitled to refuse a further adjournment for the Crown to obtain its own medical evidence. The respondent’s illness, the lengthy prior proceedings, delay, altered scope of the case, conditional bail, and the limited seriousness of the remaining allegations could reasonably be weighed together in favour of a stay.

5. Section 67 confined appellate review. As explained in R v B [2008] EWCA Crim 1144, the possibility that another judge might reasonably have reached the opposite conclusion does not establish unreasonableness. The Crown had not shown that this judge’s ruling was one he could not reasonably make.

• Court of Appeal (Criminal Division): The Crown’s application under section 58 of the Criminal Justice Act 2003 was refused. The court confirmed the stay and ordered an acquittal: [2013] EWCA Crim 707.
• Wolverhampton Crown Court: On 4 December 2012, His Honour Judge Challinor stayed the remaining counts because a further trial would be oppressive and unjust.