MH, R v

Under Criminal Justice Act 2003 Part 10, new evidence is compelling if it is reliable, substantial and, in the context of the outstanding issues, highly probative of the case against the acquitted person. The statutory test does not require overwhelming or irresistible evidence.

The interests-of-justice inquiry is not confined to the factors in section 79(2). It includes the objective diligence and expedition of forensic scientists advising the investigation. A later productive test does not itself establish earlier want of due diligence where the police reasonably relied on professionally defensible forensic advice. Delay will not prevent a retrial unless it makes a fair trial unlikely or otherwise materially prejudices the accused.

MH had been acquitted at Winchester Crown Court of the murder of Georgina Edmonds. At the original trial, the only evidence capable of directly linking him to the scene was a complex mixed DNA profile from a rolling pin.

After the acquittal, improved examination of cellular material recovered from a tape lift on the deceased’s blouse produced a partial male DNA profile consistent with MH. The statistical evidence indicated that the results were approximately 26 million times more likely if the DNA originated from him than from an unrelated person.

The Crown applied under Criminal Justice Act 2003 section 76(1) to quash the acquittal and order a retrial. The central issues were whether the evidence was new and compelling under section 78, and whether a retrial was in the interests of justice under section 79, particularly in light of the delay and the earlier decision not to test the blouse tapings.

1. The application was granted. The court quashed MH’s acquittal and ordered his retrial for murder under Criminal Justice Act 2003 Part 10.

2. The new DNA evidence was plainly new, reliable and substantial. It was also highly probative in the context of the outstanding issues. It came from a source independent of the rolling-pin DNA, strongly supported the proposition that MH’s DNA was on the deceased’s blouse, and was capable of placing him at the scene despite his denial of ever having entered the cottage or touched her. The scientifically unavoidable possibility of secondary transfer did not deprive the evidence of that quality.

3. The statutory definition of compelling evidence in section 78 was exhaustive. It required reliability, substantiality and high probative value; it did not require evidence that was overwhelming, irresistible, or certain to compel a jury to convict. In this respect, the court followed R v. Dobson [2011] EWCA Crim 1256.

4. The interests-of-justice assessment under section 79 was not limited to the listed factors, although they required particular consideration. The diligence and expedition of forensic scientists could be considered even if they were not officers or prosecutors within section 79(2)(c)–(d). The applicable standard was objective: what a reasonably competent police officer, prosecutor or forensic scientist would have done in the particular circumstances.

5. There had been no want of due diligence. The original decision not to test the blouse tapings was based on repeatedly obtained, professionally defensible forensic advice that the proposed examination was highly speculative. The police were entitled to rely on that advice. The fact that a later examination unexpectedly produced useful evidence did not retrospectively make the earlier approach unreasonable. There was also no material unfairness arising from delay: the relevant forensic evidence could be re-examined, trial transcripts protected MH in relation to witness recollection, and ordinary directions could address publicity.

6. Publication of the application and judgment was prohibited until the retrial concluded. MH was to be re-arraigned within two months at a Crown Court nominated by the Presiding Judge of the Western Circuit, with bail continuing subject to the existing terms unless that court ordered otherwise.

• Court of Appeal (Criminal Division): The Crown’s Part 10 application was granted. MH’s acquittal was quashed and a retrial for murder was ordered.
• Crown Court at Winchester: MH was tried before Sir David Clarke and a jury between November 2011 and January 2012, and was acquitted of murder on 20 January 2012.